EPA's Federal Waters Clarification Seen Vulnerable at Top Court
Anna Wildeman, a partner in Troutman Pepper's Environmental + Natural Resources Practice Group, was quoted in the January 4, 2023 Bloomberg Law article, " EPA's Federal Waters Clarification Seen Vulnerable at Top Court."
The 2023 rule "essentially creates a new legal standard" that could be interpreted as setting a higher bar for determining whether a water body falls under Clean Water Act jurisdiction, said Anna Wildeman, counsel at Troutman Pepper Hamilton Sanders LLP in Washington.
The new "material influence" requirement also provides new opportunities for agencies to make judgment calls on a number of technical and policy considerations, she said.
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The EPA has also included a new framework for evaluating waterway and wetlands protections, including whether the waters are "similarly situated" with other jurisdictional waters in a region or in their "catchment area."
"This is a substantial expansion compared to the pre-2015 framework," Wildeman said. "Practically speaking, the final rule will require landowners, farmers, and ranchers to conduct a watershed-wide assessment of all waters to understand if a wet area on their property may be jurisdictional."