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Legal Issues
May 1, 2016

Clean Water Act Regulation Roulette

Sponsored Content provided by Geoffrey Losee - Partner, Rountree Losee LLP

My partner, Steve Coggins, just gave a talk to the N.C. Beach, Inlet and Waterways Association. The association wanted to hear from him about what’s going on with the new federal regulations on where and on what  he Clean Water Act can be enforced. Here is a summary of the information he provided.
The CWA is enforced at the “Waters of the United States” (WOTUS) as defined in the regulations.
Those regulations are directed toward the CWA goal to protect the nation’s navigable waters from pollution. To accomplish that, the regulations also are applied to nearby tributaries and wetlands that drain downstream into the navigable waters. However, the regulations are so broadly or vaguely worded in places that they arguably made virtually every significant body of water and wetland subject to an expensive “case by case” inquiry into whether it is covered by the CWA.
Sure enough, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency applied the regulations to isolated lakes and wetlands.
The U.S. Supreme Court struck down that practice. The chief justice in a concurring opinion indirectly invited the agencies to “go back to the drawing board” and come up with more precise regulations. In response, the agencies then put forward revised regulations that they argued were more precise and tied to limits set by the Supreme Court. Affected parties strongly disagreed. In response to some comments, the agencies modified the regulations. They were to take effect in August 2015.
The new regulations provide numerous exemptions, such as stormwater treatment systems and groundwater. They also more precisely define what waters are so close to navigable waters that they must be regulated to accomplish CWA goals. As examples, the regulations more precisely define what a “tributary” is and what waters actually “neighbor” navigable water. In addition, the regulations provide for a case-by-case determination of certain waters depending on a combination of factors, such as whether they are in a floodplain of navigable waters and the distance from particular navigable waters. North Carolina would be especially affected by the required case-by-case determination of whether Carolina Bays and Pocosin wetlands significantly affect navigable waters.
Still, opposition remains strong. The regulations were immediately challenged by direct appeals to the federal appeals court systems. Those appeals have been consolidated before one of the appeals courts. That court recently ordered that the new regulations cannot go into effect until it can examine whether the rules comply with the U.S. Constitution and the limits of the CWA.
Most certainly, the losing side will appeal to the Supreme Court. Of course, there is no telling when that will happen, but it likely will be after the November election. Whether it comes to the Supreme Court before the Antonin Scalia vacancy is filled cannot be known in the current volatile and fluid political environment. Certainly, no one can predict the outcome in this situation.
Until then, the old, arguably overbroad regulations remain in place. In the meantime, we watch closely how the agencies apply them while we await a Supreme Court ruling.
Geoff Losee can be reached by visiting, by email at [email protected] or by calling (910) 763-3404. Rountree Losee LLP has provided a full range of legal services to individuals, families and businesses in North Carolina for over 110 years. As well-recognized leaders in each of the areas in which they practice, the attorneys of Rountree Losee provide clients a wealth of knowledge and experience. In their commitment to provide the highest quality legal service, they handle a wide range of legal issues with creativity, sensitivity and foresight. 

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