U.S. Circuit Court of Appeals issued an order that temporarily blocks the Waters of the US Rule for Michigan and 17 other states while the Court considers a jurisdictional issue. The states have argued that the rule expands jurisdictional waters under the Clean Water Act to include all tributaries, wetlands, ponds and waters within a certain distance of a jurisdictional water at odds with the ruling in the Rapanos case. The states also argue that the rulemaking process itself was flawed. According to the Order, the Court is expected to rule on the jurisdictional issue within a matter of weeks.
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.
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.
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