Back on August 29, 2023, U.S. EPA issued the rule to conform its regulations to the ruling of the U.S. Supreme Court in Sackett v. EPA which significantly reduced the number of wetlands that are federally protected under the Clean Water Act (CWA). (See, prior post discussing Sackett) The Court limited federal jurisdiction to only
wetlands
New Rule Delays Implementation of the 2015 WOTUS Rule
On January 22, 2018, the Supreme Court ruled in National Assoc. of Manufacturers v. Department of Defense that federal district courts have original jurisdiction to hear challenges to the 2015 Obama Administration Waters of the U.S. (WOTUS) rule which defined the extent of federal jurisdiction over streams and wetlands under the Clean Water Act. After…
Confustion Regarding Wetland Nationwide Permits and Regulatory Freeze
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). …
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…
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…
Split in Circuits as to Whether Army Corps JD’s are Appealable
Bringing some level of sanity to the current state of wetland and stream permitting, the Eighth Circuit Court of Appeals has determined that an approved jurisdictional determination (JD) is a final agency action that can be challenged. See, Hawkes Co., Inc. et al v. Corps, Case No. 13-3067 (April 10, 2015). The Eighth Circuit…
Challenging Jurisdictional Stream and Wetland Determinations Proves Difficult
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). The key issue- what is a "federally protected stream or wetland?"
As discussed previously on this blog, which streams and wetlands are protected under the CWA has…
Science Board Weighs in on EPA’s Water Jurisdiction Rule
The Science Advisory Board (SAB) has provided advice and comment on EPA’s proposed rule that defines which streams and wetlands are federally regulated. The SAB’s comments are interesting in two ways:
- Despite comments that EPA’s proposal pulls under federal regulation way too many waterways, SAB believes there are too many exceptions in the EPA’s proposal;
…
Army Corps Wetland Jurisdictional Determinations Are Not Reviewable
According to the 5th Circuit in Belle v. Army Corps of Engineers, nothing has changed with regard to the inability of a property owner to challenge an Army Corps of Engineers (ACOE) decision that federally protected wetlands exist on the owner’s property.
The initial step in the federal wetland permitting process is the…