In June, the EPA and the U.S. Army Corps of Engineers finalized a new rule interpreting the jurisdictional scope of the Clean Water Act. The rule defines the key statutory term “waters of the United States” (WOTUS). The revised definition significantly changes the Clean Water Act’s scope with respect to other waters.
The final rule has raised many questions about what waters are regulated and rule application. Here are some of the most frequently asked questions, answered by Damien Schiff, Esq.:
Q. What types of wetlands do not require a case-specific significant nexus analysis?
A. Wetlands that are “adjacent” to a traditional navigable waters or interstate waters, tributaries of the same, or impoundments of any of the foregoing.
Q. If my ditch has water in most days of the year, is it jurisdictional?
A. Maybe. If the ditch is not hydrologically connected to a traditional navigable water or interstate water, it is not jurisdictional, regardless of flow.
Q. Is groundwater regulated?
A. Groundwater is specifically excluded as a “water of the United States.” Nevertheless, groundwater connects are relevant to the significant nexus analysis.
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Damien Schiff, Esq. has over nine years of experience litigating cases concerning a variety of federal and state environmental and land use issues. In 2012, he argued and won Sackett v. U.S. Environmental Protection Agency, a groundbreaking decision in which the U.S. Supreme Court upheld the right of project applicants to challenge Clean Water Act compliance orders issued by the Environmental Protection Agency. For that victory, California Lawyer Magazine recognized Damien as an Attorney of the Year in Appellate Law.
In addition to the Clean Water Act, Schiff’s practice focuses on enforcement and permitting issues arising under the Endangered Species Act and the California Coastal Act. He has litigated or filed friend-of-the-court briefs in cases concerning the federal Clean Air Act, California Endangered Species Act, California Environmental Quality Act, Z’berg-Nejedly Forest Practice Act and Mello-Roos Community Facilities Act.
Before joining the firm, Schiff was a principal attorney at Pacific Legal Foundation, the nation’s premier public interest organization committed to litigating pro bono for property rights. He has appeared on national television and radio and has been quoted in news outlets such as The Economist, The New York Times, The Washington Post, and The Wall Street Journal.
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The above Q&A is provided for illustrative purposes only and should not be construed as legal advice.