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braid of the Snake River

What the Waters of the US Rule Means for Business

braid of the Snake RiverA federal appeals court this week ruled it will hear challenges to the Waters of the US Rule, also known as the Clean Water Rule.

The water rule, authored by the EPA and the Army Corps of Engineers, expands the reach of the Clean Water Act to protect US streams and wetlands from pollution. It took effect in August; however, the day it was slated to become law across the US a federal judge in North Dakota blocked the water rule from taking effect in 13 states that had sued to stop the regulations. Two months later, the Cincinnati-based Sixth Circuit Court of Appeals put the rule on hold across the US.

EPA administrator Gina McCarthy says the new rule only expands the Clean Water Act’s reach by about 3 percent. It also:

  • Says that a tributary must show physical features of flowing water — a bed, bank, and ordinary high water mark — to warrant protection. The rule provides protection for headwaters that have these features and can have a significant connection to downstream waters.
  • Protects waters that are next to rivers and lakes and their tributaries. The rule sets boundaries on covering nearby waters.
  • Protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
  • Limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.

While the EPA says the Clean Water Rule will make permitting less costly, easier and faster for businesses and industry as it more precisely defines protected waters, industries including agriculture, oil and home-building have said the rule will add additional permitting and regulatory requirements.

On Monday, the Sixth Circuit Court of Appeals agreed to hear challenges to the Waters of the US (WOTUS) rule by 18 states.

An opinion piece in the Washington Post says this could mean the WOTUS rule is in trouble.

“Given the 6th Circuit’s prior decision to stay the rule, pending resolution of the jurisdictional challenge, this would seem to indicate that things look good for those challenging the rule for exceeding the scope of the CWA,” writes Jonathan H. Adler, a law professor at the Case Western University School of Law.

Paul Beard, counsel in Alston & Bird’s environment, land use and natural resources practice group, tells Environmental Leader he expects the Supreme Court will make the ultimate decision on the legality of the water rule.

“With the present vacancy on the Supreme Court, it’s anybody’s guess what the make-up of the court will be — and therefore the likelihood of a successful challenge to the rule,” Beard says. “With Justice Scalia’s untimely passing, the court’s 5-4 balance in favor of robust review of sweeping environmental rules — like the WOTUS rule — is no more.”

In the meantime, the rule remains on-hold across the US. So what does this mean for business? It depends who you ask — and on the business.

Environmental groups including EDF Action, the advocacy arm of the Environmental Defense Fund, say the rule will protect people and industry “by promoting clean water, a healthy and abundant food supply, and thriving wildlife — while also recognizing and supporting the vital role played by our nation’s farmers and ranchers,” according to Elizabeth Thompson, president of EDFAction.

A group of small craft beer brewers, including Sierra Nevada and New Belgium, have been actively supporting the Waters of the US rule, arguing it will help ensure that they have clean water for their products, while farmers who supply beer ingredients say the rule has the potential to massively cut production on their lands.

Beard, whose practices focuses on issues arising under the Clean Water Act, says the farmers are likely right. For businesses, “much is at stake,” he says.

“The rule dramatically expands the Army Corps’ jurisdiction over lands in the United States and, in some circumstances, creates additional confusion about the scope of their jurisdiction over certain kinds of water features. This means greater uncertainty and significantly higher regulatory costs for US businesses who have to engage consultants and lawyers — early and throughout the permitting process — to get anything done on lands that would even remotely be considered to have a jurisdictional water.”

Photo Credit: braid of the Snake River via Shutterstock

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