When it comes to legal definitions, only a few have been as controversial for the real estate sector as what constitutes “the waters of the United States.” 33 U.S.C. 1362(7). Also known by the now-infamous acronym “WOTUS,” challenges to the regulatory framework behind it have created one of the most protracted regulatory battles on record—all the while leaving the fate of those seeking real estate permits in a state of great ambiguity where each situation requires a case-by-case assessment as opposed to adherence to a set of standard rules. Section 401(a) of the Clean Water Act, 33 U.S.C. §1311(a), makes the “discharge of a pollutant” unlawful and subjects any person who does so to significant civil and even criminal penalties under §309. 33 U.S.C. §1319. The term “discharge of a pollutant” is broadly defined as “any addition of any pollutant to navigable waters from any point source.” Clean Water Act §502(12), 33 U.S.C. §1362(12). “Pollutant” is also broadly defined and includes sand, dredge spills, rocks and other materials. Id. Section 404 of the Clean Water Act authorizes the Army Corp of Engineers (ACOE) to issue permits allowing the discharge of dredged or fill materials into the “navigable waters” of the United States. “Navigable Waters” are further defined in the Act as “the waters of the United States.” 33 U.S.C. 1362(7). Because a determination whether the site of a proposed development or other activity requiring dredging or filling affects the “waters of the United States” is the driving force in whether a permit is required or whether discharges made without benefit of a permit violate the Act, the definition of that term is of a great deal of importance. Attempts by the ACOE and the U.S. Environmental Protection Agency (EPA) to provide a regulatory guidance as to what bodies of water or areas constitute “waters of the United States” have generated significant controversy, which has played out in all three branches of the federal government and has involved state governments as well as the environmental and business communities. Despite more than a decade of rulemaking, legislation, executive orders and litigation, there is no clear rule and thus no guidance to the regulated and environmental communities. This article describes several recent developments in this controversy—executive order of the president (POTUS), regulatory actions by EPA, a decision by the U.S. Supreme Court (SCOTUS), a lawsuit by several attorneys general and a threatened lawsuit by several environmental groups. It does not deal with the merits of the proposed rule (which have not yet been the subject of any of the many judicial decisions issued in connection with this controversy) or discuss the procedural minutia of the legal arguments and numerous cases. To do so would require an article of even greater length that only legal scholars would enjoy. Rather, what follows attempts to describe the great lengths to which many levels of government have gone to (depending on your point of view) clarify or muddy the waters (of the United States)...MORE
1 comment:
We will let this sore fester until it overcomes us. Why oh why are we letting this go on and on? The time will return when the demo-nuts are again in control and any use of water will be controlled by those who want only to water ski, kill farms and turn agriculture into a desert. How long is it going to take for farmers, ranchers and anyone else who depends upon water to force our pathetic congress to act against this stupid law? This festering sore will spread to our local legislatures who in their progressive belief will attempt to remove any trace of 'water rights" previously enacted by state statue. Then there will be a great gnashing of teeth, rending of garments, and many voices, now sitting on the couch, saying oh woe is me as their farms and ranch values disappear into the cesspool of lassitude. Another election is on the horizon and the door is open for more swamp dwellers to escape extinction. We can only blame ourselves.
Post a Comment