Yesterday the United States Environmental Protection Agency and the Corps of Engineers released a pre-publication, final version of a new rule defining the scope of "waters of the United States" under the Clean Water Act. This definition is key to the agencies' jurisdiction under the National Pollutant Discharge Elimination System, Clean Water Act Section 404 permitting for discharge of dredge and fill materials, Oil Pollution Act coverage, and other federal water quality permitting, notification, and liability programs. The rule replaces 2008 guidance and 2011 draft guidance (later withdrawn) issued by the agencies in the aftermath of the U.S. Supreme Court's plurality opinion in Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006), in which Justice Kennedy articulated a "significant nexus" test for defining waters of the U.S. The rule will become effective sixty days after publication in the Federal Register. EPA and the Corps say the rule expands the scope of waters covered by these laws by only about 3%, but industry and development interests claim the expansion is much greater. Industry, development, and environmental interests have all threatened to seek judicial review of the new rule. EPA has posted information on the rule, including the text of the final rule.
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
