The Final “Waters of the United States” Rule…Maybe

Sep 15, 2015

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Susan Alford - President of Berg Oliver Associates, Inc.

On August 28, 2015, the EPA pushed forward, with the Final Waters of the United States (WOTUS) Rule, its attempt to clarify jurisdictional limits covered under Section 404 of the Clean Water Act and how they are defined.

Attempt is as gracious of a term as I can use.


I have read the 300-page rule and the scientific reports it references multiple times to pull the pieces and parts together. I feel I speak for many when I say…!!@^!%&^@?. Even the U.S. Army Corps of Engineers is rebutting to the EPA.


The rule has sparked a flurry of Federal Court filings for and against the Rule.


On August 27, 2015, North Dakota and 12 of is neighboring states were successful in avoiding the confusion, at least temporarily, with a granted injunction. Sorry – Texas is not one of the 13.

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Many of you may have heard the great applause and cheers on August 30, 2015 when the summary judgement in favor of Lipar was issued for the on-going case around the Bender’s Landing subdivision and Windcrest Lakes. The summary issued by District Judge Lynn Hughes in United States of America versus Lipar cites that the EPA failed to supply the data and follow court orders and deadlines to prove its claims of jurisdiction by defining adjacency to navigable waters and violation under the CWA. Many will likely use this District ruling to bolster their position that nothing is or ever has been jurisdictional anywhere in the Texas gulf coast except for tidally influenced zones. PROCEED WITH CAUTION.


Here are some points to ponder regarding the Lipar case.


1) The lead EPA investigator retired. After his retirement, the data and institutional knowledge the EPA needed was possibly lost or not accessible.


2) The EPA has a bigger battle to fight nationally… So they backed off? Maybe?


3) The summary is dated 2 days after the Final Rule became effective. Maybe that means nothing, but I find it odd.


4) The Lipar decision is not the law of the land.


5) The definition of Navigable in Fact and Navigable by Law in 33 CFR 328 and 33 CFR 329 have not been altered, it is the interpretation of where to draw the limits of adjacency/bordering/neighboring that continue to be muddy waters (pardon the pun).


Our Advice – DOCUMENT, DOCUMENT, DOCUMENT


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.”


So for Texas, we are stuck with the new rule, at least temporarily.


To be continued…..




Berg Oliver Associates, Inc. is a full service environmental science firm, established in 1990, with proven experience devoted entirely to the field of Environmental Consulting Services. Click here to view their website.

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