Regulatory Update   |   Oct 15th, 2015 Waters of the United States – Back to 2008

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On October 9, 2015 the United States Court of Appeals for the 6th Circuit granted a petition filed by 18 states to stay the joint US Army Corps of Engineers (USACE) and US Environmental Protection Agency (USEPA) rule defining “Waters of the United States” (WOTUS) subject to the federal Clean Water Act (CWA). The full text of the Circuit court’s decision can be found here.

The USACE and USEPA issued the WOTUS rule to establish a national framework for waters and wetlands subject to federal jurisdiction to be consistent with the 2007 United States Supreme Court decision in Rapanos v. United States. Doing so, the agencies asserted, would reduce confusion about the limits of federal jurisdiction over waters and wetlands and facilitate Clean Water Act permitting decisions, especially regarding CWA section 404, which regulated discharges of dredged and fill materials into WOTUS. The final WOTUS rule was published on June 29, 2015 and became law sixty days later.

Shortly after the rule was published, it was challenged in several federal district courts, and these courts came to different opinions regarding the filed petitions. The North Dakota federal district court issued an injunction blocking implementation of the WOTUS in 13 states that had jointly filed suit. District courts in West Virginia and Georgia declined to grant petitions to stay the WOTUS rule, as these courts independently came to the same conclusion, that they are not the proper venue to determine the cases.

What does this mean for the regulated community?

As stated in the 6th Circuit Court’s ruling, the stay “preserves the status quo.” In other words, federal jurisdiction once again will be guided by the joint USACE/USEPA “Clean Water Act Jurisdiction Guidance” issued on December 8, 2008. For the regulated community, this is good news but not without some challenges.

The good news is that jurisdictional determinations will be based on a framework that has been in place for almost seven years, and that has become familiar to both the regulated community and the regulators.

The challenges arise because different federal courts have interpreted Rapanos differently. Some courts, such as the 9th Circuit, have taken an expansive view of what constitutes a traditional navigable, i.e. federally jurisdictional, water. Other courts, such as the 11th Circuit, have determined that a significant nexus to a navigable water must be established in order for any ‘non-navigable’ water to be subject to federal jurisdiction.

Knowledge of local implementation requirements in the 2008 guidance is important to successfully negotiate the patchwork of federal and state regulations governing jurisdictional waters and wetlands. Experience with the Corps of Engineers Regional Supplement to the Corps Wetland Delineation Manual that applies to your project area will be important. Finally, mitigation needs to satisfy both the federal Compensatory Mitigation Rule (33 CFR 332) and the local Corps District approach or metric for calculating mitigation credits.

Please contact us if you have questions about jurisdictional determinations, wetland delineation and permitting. Or ask a question or share your experience in the comment section below.