The extent of jurisdictional authority of the US Army Corps of Engineers and the Michigan Department of Environmental Quality over the various waterways, watercourses, and wetlands of Michigan has been a hotly debated topic since the Clean Water Act was adopted in 1972. Both private property owners and County Drain Commissioners have questioned the application and interpretation of what defines “waters of the United States.” This impacts both the type of work and the cost of work to modify or maintain a County Drain or certain types of private property, and has even resulted in private property owners facing substantial criminal and civil penalties.
In June of this year, “The Clean Water Rule” 80 Fed. Reg. 37,054 was meant to clarify the definition of “waters of the United States,” as used in the Clean Water Act “to make the process of identifying waters protected under the Clean Water Act easier to understand…” Eighteen states oppose the new definition and resulting expanded Federal jurisdiction, arguing that the new rule is not consistent with past precedent, namely the 2006 case, John R. Rapanos v. United States. The Sixth U.S. Circuit Court of Appeals has issued a temporary hold Order on “The Clean Water Rule” while they rule on this jurisdictional rule.