The U.S. Court of Appeals for the Sixth Circuit has issued a temporary nationwide injunction halting the controversial new Waters of the United States rule (WOTUS) of the Clean Water Act, saying a stay is needed to silence “the whirlwind of confusion that springs from the uncertainty” about the rule’s requirements.
Paul Beard, counsel in Alston & Bird’s Environment, Land Use & Natural Resources Group, said the uncertainty is bad for millions of landowners and business owners who need to plan on a longer-term basis where, how and to what extent they can make proactive use of their properties and facilities.
The WOTUS rule extends federal jurisdiction over tens of millions of acres of private land that had been regulated by the states. Critics contend the rule exceeds the agency’s legal authority.
“Individuals and businesses want certainty most of all, and that certainty will come only by forcing the federal agencies to stick within the confines of their powers under the Clean Water Act and the federal Constitution,” said Beard.
In the meantime, Beard suggested companies talk with an environmental consultant or a land-use attorney to assess if they need a federal permit under the Clean Water Act. He also said it’s beneficial to secure a “jurisdictional determination” from the agencies before substantial expenditure of time and money are undertaken on a project.
“The opinion can be helpful in predicting whether there is a water feature on the land over which the agencies have jurisdiction,” said Beard.