July 20, 2015

WOTUS Part 1: The Federal Government Expands Jurisdiction

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On May 27, 2015, the US EPA and the US Army Corps of Engineers released the final rule defining “water of the United States” (“WOTUS”) which, according to most, expands federal government’s jurisdiction under the Clean Water Act (CWA) over waterways and drinking water supplies throughout the United States.  Originally proposed and published for public comment on April 24, 2014, the rule has been very controversial.   Commercial, farming, forestry, small landowner, municipal, and industrial interests alike fear the new rule will result in a significant increase in project approval costs and completion time under the presumption that more permits under Section 402 (authorizing certain discharges into water bodies) will be required in circumstances where they were not before.

Further, there is every reason to believe that certain aspects of the new rule will be tested through litigation.  By example only, the term “adjacent waters” appears to make jurisdictional “isolated” waters and wetlands that were previously beyond the reach of federal regulation.  In addition, shortly after the US EPA’s and the US Army Corps’ May 27th release, Congress began taking efforts to prevent finalization and, ultimately, implementation. 

The rule was published in the Federal Register (80 FR 37054) on June 29, 2015 that becomes effective on August 28, 2015.

Part 2   Part 3   Part 4   Part 5   Part 6

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