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Some states take issue with EPA's new definition of 'navigable U.S. waters'

Land use regulations in Massachusetts are ever-evolving, and different municipalities have significantly different requirements and restrictions. To avoid time-consuming pitfalls and oversights that could affect the success of your development project, it is important to work with an attorney who is familiar with each jurisdiction's codes and practices.

For many projects, environmental restrictions are one area of particular concern, as these regulations often change and are enforced by local, state and federal authorities. In fact, the U.S. Environmental Protection Agency recently issued a new ruling meant to clarify which kinds of wetlands and other water resources are protected under the 1972 Clean Water Act. However, some states governments have taken issue with the rule.

Sixteen states, not including Massachusetts, are suing the EPA, saying that the new definition of federally protected waters is too broad and poses a threat to landowners' property rights.

The Clean Water Act gives the federal government jurisdictional authority to exact pollution controls over navigable "waters of the United States," but the lawsuits filed by the states claim that the new definition of navigable waters doesn't take into account a number of factors, including duration of water flow.

For example, a lawsuit filed in Texas claims the new definition of protected waters would give the EPA and the U.S. Army Corps of Engineers jurisdiction over "dry ponds, ephemeral streams, intermittent channels and even ditches."

A recent article in Reuters has more on the EPA's reasoning for the new ruling.

Whether you're purchasing, developing or selling a property, cover your legal bases on the local, state and federal levels. You need someone on your side who knows environmental law and stays abreast of its frequent changes.

To learn more, please see Seder & Chandler LLP's environmental law overview.

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