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.
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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
EPA Releases “Waters of the U.S.” Rule
On May 27, 2015, US EPA and the Army Corps of Engineers (ACOE) released the final version of the rule which defines federal jurisdiction over waterways (referred to as the "Clean Water Rule").
Those who support the rule argue that it merely puts in place existing guidance and practice. Supporters also argue
City of Cleveland Proposes Riparian Setback Ordinance
Northeast Ohio has had the largest number of political subdivisions in Ohio enact riparian and wetland setback ordinances. Now, the City of Cleveland is proposing to get into the act with its proposed Setback Ordinance 1555-13.
News of the City’s proposal got out this week when many property owners who could be subject