On Tuesday, the U.S. Environmental Protection Agency proposed a rule regarding the scope of the federal Clean Water Act. Prior to its release Tuesday, the rule was leaked and earlier drafts stirred significant controversy.

This rule as proposed is unlikely to end the controversy and it appears likely to have far-reaching impacts on agriculture, industry and development. Because of Florida’s flat terrain and extensive wetlands, it is especially susceptible to changes in the Clean Water Act and could become a flashpoint for the rule.

In a series of court cases dating back to 2001, the U.S. Supreme Court and lower courts have wrestled with the jurisdiction of the Clean Water Act. The EPA’s proposed rule is an effort to clarify the jurisdiction of the Act.

The proposed rule contains a number of significant changes. Among other things, with some limited exceptions, the rule would expand the notion of tributaries to include man-made ditches or canals. The rule could therefore cover agricultural ditches, drainage canals and roadside ditches.

It also expands the notion of waters covered under the Clean Water Act as “adjacent” to other covered waters. Waters would now be adjacent if located in the riparian area or floodplain of another covered water.

Overall, the proposed rule appears to be a significant expansion of existing Clean Water Act jurisdiction. This jurisdiction affects many aspects of federal permitting, including industrial discharges to waters, the scope of federal endangered species review, and the extent of mitigation under the Army Corps’ wetlands permits – all of which are subject to third-party review and legal challenge.

Initial reviews by some groups of the 370 page document containing the proposed rule critique the data and process relied upon by EPA for the rulemaking, so challenges to the rule are likely to follow the rulemaking process.

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Gunster’s environmental and land use attorneys continue to monitor the progress of the EPA’s proposal. If you have any questions about how the rule might affect your business, please contact Greg Munson, an environmental attorney in the firm’s Tallahassee office.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 11 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. With more than 170 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 350 largest law firms. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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