The Atlanta Lawyer May 2014 | Page 36

section update Environmental & Toxic Tort Section By Richard A. Horder Kazmarek Mowrey Cloud Laseter LLP [email protected] T he Environmental and Toxic Tort (ETT) Section is looking forward to planning a tour of the Atlanta Beltline, which we hope to schedule for late May 2014. Following the tour, members will enjoy relaxing together at the Section’s semi-annual happy hour, to be held at Front Page News in Midtown. In the fall, the Section has plans for an evening CLE to discuss the importance of experts in both environmental litigation and real estate transactions. As part of its efforts to keep members up to date on the latest topics in environmental law, the Section would like to share the following news regarding the recently expanded definition of “Waters of the United States” in a new proposed rule. Contributors for this portion of the update are Richard Glaze and Dave Moore of Balch & Bingham LLP. We thank them for their research and for sharing this valuable information. On March 25, 2014, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency released a prepublication proposed rule that would expand the definition of ‘Waters of the United States’ subject to the Clean Water Act. The new rule clarifies that “neighboring” areas; riparian areas; and areas “adjacent” to waters of the United States, among others, are subject to the agencies’ regulatory programs, which include requirements for permitting, enforcement, and mitigation. One of the more significant impacts of the proposed rule would be to clarify the treatment of ditches, which have existed in a gray area under the Act. Under the new rule, ditches and other water conveyances will be regulated if they have an ordinary high water mark (“OHWM”) and contribute flow to a stream, river, wetland, bay or other water. A created or altered ditch is considered a tributary if, for any length, there is at least one “natural break” (such as wetlands at the head of or along the ditch or stream) so long as a bed and banks and an OHWM can be identified upstream of the “natural break.” A tributary, including wetlands, can be natural, man-altered, or man-made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches. Also included are areas separated from rivers, streams or wetlands by man-made dikes or barriers, natural river berms, beach dunes “and the like.” The new proposed rule can be found here. Anyone interested in submitting comments to the rule must do so within ninety (90) days following publication of the rule. We’re Social 36 THE ATLANTA LAWYER May 2014 Join Us! The Official News Publication of the Atlanta Bar Association