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.
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36 THE ATLANTA LAWYER
May 2014
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