The Final “Waters of the United States” Rule, Continued…

Aug 02, 2016


Susan Alford - President of Berg Oliver Associates, Inc.

As many of you may have read, the Final “Waters of the United States” Rule (WOTUS) is now being reviewed in the 6th Circuit Court of Appeals and will likely continue to be reviewed in other District Courts. It is anticipated that the WOTUS rule will ultimately end back at the US Supreme Court. Funny, they started this mess. Meanwhile, there will likely be a myriad of conflicting opinions of jurisdiction within the courts leaving us all with a game of Clean Water Act limbo.

This begs the question I have heard often these days… “Can I still fill wetlands?”

The answer is yes.

The real question we will continue to be faced with addressing is ”What is jurisdictional under Section 404 of the Clean Water Act?”

For that answer, we are back to where we were before the WOTUS rule first hit the streets, at least for now.

What does that mean? Connectivity to the 100 year floodplain, blue dashed lines on a USGS quad are just a few of the tools the Corps of Engineers uses to define jurisdiction.

Our Advice – DOCUMENT, DOCUMENT, DOCUMENT!

If you need a permit, work with your consultant to come up with a strategy that works for you.

Texas, Louisiana, and Mississippi joined together and filed with the Southern District Court on June 29, 2015. A stay was granted “pending consolidation of all cases filed against the EPA on the matter.”

The review of the case in the 6th Circuit leaves the stay in place nationwide.

The latest twist in all of this is the Supreme Court’s decision on May 31, 2016 with the Hawkes case which basically states an Approved Jurisdictional Determination from the Corps of Engineers is an action that affords the applicant the right to appeal such decision in the federal courts.

To be continued...

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