On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued an order staying implementation of the “Waters of the United States” (WOTUS) rule nationwide (Ohio et al v. U.S. Army Corps of Engineers et al). This order continues the long line of litigation over which water bodies are regulated by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE), and thus require a permit before property owners, contractors and developers can build. Previous litigants have challenged the EPA and USACE’s interpretation of the CWA as too broad, claiming that it would cover small bodies of water that have no apparent connection to waterways that the CWA intends to protect. The lack of clarity of the meaning of “waters of the United States” and “navigable waters” presents challenges to property owners, contractors and developers seeking to develop property that has a pond, creek or other small body of water within.

The framers of the WOTUS rule intended to clarify what bodies of water are regulated by the CWA. In balancing the potential harm to both sides, the Circuit Court agreed with petitioners that no evidence existed that the country’s bodies of water would suffer imminent injury if the court put the regulation on hold while the merits of claim were reviewed, and thus issued the stay. The intention of the court in staying the regulation was to give them time to decide whether the WOTUS rule is a misuse of the executive branch’s regulatory powers.

Other lawsuits have been filed throughout the U.S. in federal district and appellate courts since the WOTUS rule was issued earlier in the year. The U.S. District Court in North Dakota had already order a preliminary injunction against the WOTUS rule, which applied to the 13 states involved in that lawsuit. Previously, the U.S. Supreme Court in 2001 and 2006 concluded that the EPA and Army Corps of Engineers had adopted too broad of an interpretation of the scope of the CWA, in Rapanos v. United States, 547 U.S. 715 and Solid Waste Agency of N. Cook City v. U.S. Army Corps of Engineers, 531 U.S. 159. EPA and USACE have been seeking to clarify that interpretation ever since.

It is still uncertain as to whether appellate courts or district courts have original jurisdiction over challenges to the Clean Water Act such as those made thus far upon the WOTUS rule. While the Sixth Circuit did not rule as to jurisdiction, other courts that have looked at challenges to the rule have split on the issue of jurisdiction. In evaluating the merits of their claim, the court concluded that the opponents of the WOTUS rule have shown a substantial possibility of succeeding. The court also declared that there were other good reasons for putting the rule on hold while other challenges to the rule await resolution, such as clarifying the meaning of just what “navigable waters of the United States”. Finally, the court also made note in their opinion of the 13 states where the rule has already been placed on hold.

Philadelphia Clean Water Lawyers at Michelman & Bricker, P.C. Help Businesses Implement Polices that Comply with Environmental Law

At Michelman & Bricker, P.C., our Philadelphia Clean Water Act permitting lawyers represent businesses with environmental law compliance issues and help them to evaluate construction projects to determine what permits are required, such as Section 404 permits. We stay up to date on changes in the law to make sure that your business, whether small or large, is in compliance with all relevant environmental statutes in place. If a violation of these statutes has occurred, we will work to reduced your exposure and minimize the impact it has on your business and make sure that you are in full compliance in the future.

We have experience negotiating with state and federal authorities over complex claims involving state and federal environmental laws. For example, we previously represented a developer against the EPA’s claims that he had destroyed wetlands by excavating land to build a pond, and settled these claims for a $100 civil penalty after demonstrating that the property had not been a regulated wetlands area.

Call us at 215-557-9440 or contact us online today to schedule your consultation at our offices in Philadelphia, Pennsylvania, or Cherry Hill, New Jersey.