Max Bridges, a member of Wyatt’s Natural Resources & Environmental Service Team, will be presenting at the Kentucky Chamber of Commerce‘s 14th Annual Environmental Conference on February 9-10 in Lexington. Mr. Bridges will be speaking on the topic “Real Estate and Environmental Issues Selected Statutes and Predevelopment Planning.” The presentation will focus on issues under the major environmental laws that impact real estate development including issues arising under the Clean Water Act, Endangered Species Act, Comprehensive Environmental Response, Compensation, and Liability (CERCLA), and other federal and state laws. It will also address pre-development planning and how to avoid liabilities.
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By Max E. Bridges
On May 27, the EPA finalized the “Clean Water Rule” which defines the scope of waters protected by the Clean Water Act. The rule is intended to clarify and implement Supreme Court decisions interpreting the reach of Clean Water Act provisions controlled by the phrase “waters of the United States.”
Those decisions have produced considerable confusion over what waters the EPA and the Corps of Engineers can regulate. The final rule gives the federal government an expansive jurisdiction, but is less ambiguous than the proposed rule because it relies more on distances and less on imprecise terms and descriptions. The New York Times estimates the rule will apply to about 60% of the nation’s waters.
The Clean Water Rule identifies seven different categories of “waters of the United States” (“WOTUS”): traditional navigable waters, all interstate waters (including interstate wetlands), the territorial seas, impoundments, tributaries, adjacent waters, and on a case-by-case basis, waters with a significant nexus to downstream waters. The last three categories are the most controversial and will be discussed in greater detail.
The EPA defines a ‘tributary’ as a water that contributes flow to a WOTUS and is characterized by three physical indicators: a bed, bank and ordinary high water mark. But there’s some ambiguity in how Continue reading EPA Finalizes Waters of the United States Rule