WASHINGTON, D.C. – September 10, 2015 – (RealEstateRama) — A federal court in North Dakota issued an injunction recently against the Obama Administration’s “Waters of the U.S.” final rule that went into effect on August 28. This Environmental Protection Agency (EPA) and Army Corps of Engineers’ (Corps) regulation defines the scope of water and land subject to federal jurisdiction under the Clean Water Act. The court’s decision is a blow to the Administration, which moved forward with the controversial regulation although more than 30 states wanted greater consultation in its development. The rule will present challenges for multifamily owners because they will now have to seek federal permits, beyond current requirements, for activities on their land.
Ultimately, the court’s ruling means that the EPA and Corps’ regulation cannot be enforced in the states who were parties to the related lawsuit. They include: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
A dozen lawsuits, including the North Dakota case, were filed in federal district courts, and others were filed in eight federal appeals courts nationwide. Those eight have been consolidated at the 6th Circuit, and EPA is seeking to have the district court cases consolidated and moved to Washington, DC.
Anecdotal reports collected from EPA and Corps field staff across the country have found varying levels of familiarity with the new requirements. It will be sometime before implementation plans and guidance documents are developed. This is likely to create confusion and delays for permit seekers