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“Waters of the United States” Expanded Definition and its Impact on Developers and Property Owners

The expanded definition of the “Waters of the United States” (“WOTUS”) as published in the Federal Register June 29, 2015, will become effective on August 28, 2015. Per EPA, this new rule is in response to the Supreme Court opinions regarding Clean Water Act jurisdiction, and is intended to provide clarity as to which waters are actually subject to the jurisdiction of the EPA pursuant to the Clean Water Act. In this regard, this regulation does clarify that jurisdictional waters such as traditional navigable waterways are always subject to EPA jurisdiction and considered a WOTUS. It also specifically excludes certain waters such as puddles and groundwater from being a WOTUS. However, the vast majority of waters that may be subject to this definition will need to be analyzed on a case-by-case basis to assess if it is a WOTUS.

This new regulatory definition has greatly expanded  EPA’s authority over privately-held property and waters historically falling within the jurisdiction of the states. Therefore, the expanded WOTUS definition is anticipated to impact the development of almost any property or right-of-way to the extent that water is present in the vicinity. This new rule will also inevitably create project delays to ascertain whether waters are in fact a WOTUS, and whether additional approvals or permits are necessary as part of the project development.

This expanded definition also has the potential to adversely impact the agricultural industry, small businesses, developers, and golfing facilities. Failure to comply with this new rule could subject a party to potential enforcement actions and/or administrative penalties.

Due to its vast reach, many states including Indiana have challenged the validity of the new rule. However, because the legal challenges will not be able to be fully resolved prior to the August 28, 2015, effective date, all parties potentially impacted need to take caution and seek advice in assessing the waters on their property and navigating this expanded definition of a WOTUS.

For more information about this or any related legal matter, please contact Monica Edwards at medwards@kddk.com or (812) 423-3183, or contact any member of the KDDK Environmental Law Practice Team.

About the Author

Monica Edwards

Monica E. Edwards, a Partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, is a member of the KDDK business, environmental, intellectual property, and real estate law practice teams. Monica draws upon her scientific experience as a technical services chemist and prior environmental consultant in her practice of environmental law. Her background helps her assist clients in performing environmental due diligence, negotiating environmental settlement agreements, coordinating site clean-ups, prosecuting historical environmental insurance claims, and recovering environmental defense and indemnity costs.

Monica’s intellectual property experience includes the registration, assignment and renewal of trademarks and copyrights. She is also frequently involved with the licensing and defense of intellectual property and the negotiation of confidentiality agreements on clients’ behalf.