Federal control over private lands would be expanded significantly under a proposed rule reportedly drafted by the Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Corps").
Industry groups that develop or excavate property, or discharge to land or water should pay close attention to the proposed rule, not yet officially released. The EPA and the Corps contend the proposed rule clarifies federal power over "waters of the U.S." under the Clean Water Act and will ease permitting delays. However, according to an unofficial draft of the proposed rule, the agencies expand federal jurisdiction over essentially all waters and wetlands that affect navigable waters downstream, including areas far upstream that may be wet only intermittently. In other words, this potential grab for more federal authority over intrastate waters means an increase in costs, burdensome permit requirements, and increased regulatory intrusion into how certain industries currently or in the future conduct their business.
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