Max Bridges, Associate in the Firm’s Natural Resources & Environmental Service Team, wrote an article that was published in the fall edition of the Kentucky Rural Water Association‘s Waterproof Magazine. The article, “EPA’s Muddy ‘Waters of the U.S.’ Rule,” describes the history of the Clean Water Act with regard to the “waters of the United States,” and explains how certain aspects of the Clean Water Rule have yet to be clarified.
Please click here to read the full article.
By Karen J. Greenwell
Today a three-judge panel of the United States Court of Appeals for the Sixth Circuit stayed enforcement of the new Clean Water Rules (the “Rules’” governing activities involving the “Waters of the United States” pending resolution of several challenges to the Rules). Unlike the prior injunction from the North Dakota District Court, the Sixth Circuit prohibited the Army Corps of Engineers and the EPA from enforcing the Rules anywhere in the United States. The prior rules will remain in effect while enforcement of the new Rules is stayed.
It is likely that the Corps and EPA will seek a hearing before all of the judges of the Sixth Circuit and/or appeal the injunction to the U.S. Supreme Court. The opinion can be found here.
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