This week the U.S. Supreme Court ruled in Nat’l Ass’n of Mfrs. v. Dep’t of Def., No. 16-299 that district courts have jurisdiction to hear challenges to any rule that attempts to define "Waters of the United States" for purposes of determining the scope of coverage of the Clean Water Act. As detailed on this
Unwind of WOTUS Gets Us Back to the Beginning
The Trump Administration has promised massive deregulation, in particular reductions in environmental regulations. A major target of the Trump Administration’s deregulation agenda is the Obama Administration’s Waters of the U.S. Rule (WOTUS) which defines which wetlands and streams are federally regulated.
However, as described in this post, despite the controversy, all of the regulatory activity
Ohio EPA Limits Use of Expedited Wetland/Stream Permitting to Certain Areas of the State
Developments that have small impacts to wetlands (typically around 1/2 acre or less) or streams (typically around 300 feet or less) have been able to qualify for expedited permitting known as Nationwide Permits (NWP). Projects with greater impacts must obtain individual wetland or stream permits known as a 404 Army Corps Permit and 401 Ohio
Confustion Regarding Wetland Nationwide Permits and Regulatory Freeze
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On January 20th, President Trump’s Chief of Staff, Reince Priebus issued a Memorandum to the Heads of Executive Departments and Agencies imposing a regulatory freeze. There appears to be a lot of confusion among environmental attorneys and consultants as to whether the freeze applies to the Army Corps of Engineers (ACOE) Nationwide Permits (NWP).
Army Corps of Engineers Issues Regulatory Guidance in Response to Hawkes Case
On October 31, the Army Corps of Engineers ("ACOE") issued new guidance as to the types and prioritization of jurisdictional determinations (JDs). Regulatory Guidance Letter (RGL) 16-01 "Jurisdictional Determinations" has very little new guidance in reality. However, some key language in the RGL makes clear the real purpose behind the RGL.
What is
Supreme Court Decides Army Corps JD’s Can be Appealed
In a very significant case for property owners and developers, the U.S. Supreme Court issued its decision today that Army Corps Jurisdictional Determinations (JDs) are final agency actions which can be challenged in Court. In U.S. Army Corps of Engineers v. Hawkes, the Court determined that JDs meet the test for final agency actions:
U.S. Supreme Court to Decide Whether Army Corps JDs Can be Challenged in Court
In prior posts, I have discussed the split in the federal circuit courts over whether Army Corps of Engineers (ACOE) Jurisdictional Determinations (JDs) can be challenged in Court. A JD is the ACOE formal determination as to whether streams and wetlands are federally protected under the Clean Water Act and whether a 404/401 permit is
Sixth Circuit Issues Stay of the Clean Water Rule
Today, the Sixth Circuit issued a stay of the Clean Water Rule in response to a challenge filed by eighteen states, including Ohio. The issuance of a stay represents a major set back to EPA in effort to better define the limits of federal jurisdiction under the Clean Water Act (CWA). Unlike the stay issued
Federal District Court Blocks EPA’s Water’s of the U.S. Rule
Last week, the U.S. District Court for North Dakota imposed a preliminary injunction against EPA’s implementation of its "Waters of the U.S. Rule" which defines the waterways and wetlands regulated under the Clean Water Act. See, North Dakota v. EPA. The Court issued its decision despite the EPA and Army Corps’ argument that exclusive
The Basics of Wetland and Stream Permitting
Under the Clean Water Act (CWA), you cannot impact a federally protected stream or wetland unless you obtain a 404 permit from the Army Corps of Engineers (ACOE).See 33 U.S.C. §§ 1344(a), 1362(7). If you trigger the need for a 404 permit, you will also need a 401 Water Quality Certification. Ohio Administrative Code