August 13, 2015

Update on Clean Water rule hearing

By M. Reed Hopper Senior Attorney

We have noted here and here, that August 12 would be a big day in the Clean Water Act rule litigation.  Yesterday, Judge Wood, in the Southern District of Georgia, held a hearing on the preliminary injunction motion filed by 11 states opposing the rule.  Unfortunately, she did not decide the motion yesterday but promised to do so by August 28 when the new “waters of the United States” rule takes effect.  She is waiting to see if the multi-district panel issues a decision on whether and where to consolidate the ten district court cases before she decides whether to enjoin or stay the rule.

According to our colleagues who attended the hearing, Judge Wood was not impressed with the government’s argument that the new rule was merely a clarification of Clean Water Act jurisdiction and had no real impact on the ground.  If that were the case, she queried, why would the government oppose staying the rule until the legal challenges have all been heard?  Apparently, the government responded the new rule was eagerly awaited by the farming community because “of all the new farming exemptions” the rule provides.  Given the overwhelming opposition to the rule by farming groups, including our own clients, this argument had to have been offered “tongue-in-cheek.”

In the meantime, the 70 plaintiffs who are challenging the rule are preparing their oppositions to the government’s motion to consolidate the district court cases in the D.C. District Court.  Now that Judge Wood has heard the injunction motion and considered the briefs, she is familiar with the issues and we believe she is the most obvious candidate to hear the consolidated cases.

What to read next