When does placing fill in a wetland or disturbing a stream for construction require a federal permit? Seems like this should evoke a pretty straightforward answer. However, for more than a decade the extent of federal permitting regulations has been unclear. Now EPA and the Army Corps of Engineers (ACOE) are attempting, once again, to
EPA Finds No Support in the Courts for Wetland Guidance
Ever since Rapanos, EPA has struggled to consistently apply the "continuous surface connection" and "significant nexus test" which both emerged from the Supreme Court decision. The two tests are to be used to determine whether wetlands fall within federal jurisdiction.
To combat these inconsistencies, the Army Corps (ACOE) has adopted guidance documents to help…
EPA Inspector General Reports Impact of Rapanos Uncertainty
U.S. EPA’s Office of Inspector General released a report regarding the effects of the Supreme Court’s decision in Rapanos on enforcement of Section 404 of the Clean Water Act. The report, titled Comments Related to Effects Jurisdictional Uncertainty On Clean Water Act Implementation, contains some interesting observations and discussion. Bottomline, the lack of clarity…
Controversial Ohio EPA Rule Proposes New Permit For Impacts To All Streams
On September 12, 2008, Ohio EPA issued proposed rules that would require a new permit, called a "state water quality permit", for all dredge or fill impacts to non-federally regulated streams. Ohio may be the first state in the country to try and expand state stream permit requirements in reaction to recent U.S. Supreme…
Update: Shrinking Jurisdiction Leads EPA to Drop Hundreds of Clean Water Act Cases
In a prior post discussing the impact of the Supreme Court’s rulings limiting federal jurisdiction over waterways, I discussed how state’s may feel increasing pressure to fill the gaps in federal authority. A recent article in the Boston Globe on diminished EPA enforcement suggests the states are probably dusting off their legal theories as we speak.
Narrowing Federal Jurisdiction Over Waterways
The USA Today did a story on the huge debate taking place over the limits of federal jurisdiction over waterways. The debate ensued in the aftermath of two major Supreme Court cases dealing with federal jurisdiction over wetlands.
Early on the focus after Rapanos and SWANCC was which wetlands would receive federal protection. Now, after a series…