The Dotted Line: What’s up with WOTUS?

In late December, as a lot of the nation was on a vacation break, the Environmental Safety Company quietly issued a brand new, last rule defining what constitutes the “waters of the USA,” or WOTUS, that are protected beneath the Clear Water Act. 

The controversy surrounding that rule has been something however quiet since. 

In January, 16 trade associations, together with the American Highway & Transportation Builders Affiliation, the Related Basic Contractors of America and the Nationwide Multifamily Housing Council, filed swimsuit to dam the rule. They argue it’s unconstitutionally broad and encompasses a “staggering vary of dry land and water options.” 

The rule applies to each giant navigable waters and different adjoining waterways — suppose the Mississippi River— however would additionally cowl small and intermittent streams, wetlands and ponds that may solely maintain water seasonally or after a heavy rain. In different phrases, the sorts of our bodies of water which can be usually current on improvement websites. 

Stephen E. Sandherr, CEO of the AGC, for instance, took concern with the intermittent facet of the rule. 

“Simply because a chunk of land often will get moist doesn’t make it a navigable waterway,” Sandherr mentioned in a launch. “Strive as it would, the administration can’t redefine the fact of current regulation or constitutional limits on govt energy.”

For its half, ARTBA mentioned the rule would gradual supply of transportation initiatives and “threatens to nullify the advantages of the 2021 federal infrastructure regulation.” 

The end result of the trade teams’ litigation, filed within the U.S. District Court docket for the Southern District of Texas, continues to be unknown. A pending choice from the U.S. Supreme Court docket in a separate case associated to WOTUS that’s due out this summer time may additionally additional impression the difficulty. 

However environmental and building attorneys say the brand new rule, if it stands, may add as much as $1 million per acre to improvement initiatives which can be adjoining to or have a reference to waters of the USA. It’s set to enter impact March 30.

“All in, you’re speaking marketing consultant preparatory work, obstacles for a brand new buffer zone and perhaps doing mitigation work to reinforce a wetland elsewhere,” mentioned legal professional Jim Kosch, a associate within the building group at Newark, New Jersey-based regulation agency McCarter & English. “It’s actually solely restricted by how demanding the regulators wish to be, and the way far the developer is keen to go to accommodate them.”

What’s WOTUS?

The definition of what constitutes WOTUS, and is thus topic to regulation and allowing by EPA and the U.S. Military Corps of Engineers, has ebbed and flowed for years.

Each the Obama and Trump Administrations issued their very own guidelines to outline WOTUS, however they had been finally blocked in federal courts. That prompted the present administration to hunt a extra “sturdy” resolution that will give steering to each regulators and lined stakeholders. 

The brand new last rule largely revives the definition of WOTUS from the Reagan period, whereas splitting the distinction between the 2 earlier administrations. 

“The Biden Administration’s model of the rule needs to be thought of a center floor between the Obama and Trump-era WOTUS guidelines,” mentioned legal professional Taylor Holcomb, a associate within the Austin, Texas, workplace of regulation agency Jackson Walker.  

However there’s additionally sufficient wiggle room within the new rule, Holcomb says, to develop what sort of waterways are lined. That’s as a result of a brand new check of whether or not a challenge “considerably impacts” a lined physique of water will come into play as nicely. 

“That can possible end in an elevated variety of water options, together with wetlands, being subjected to authorities oversight,” Holcomb mentioned.

Which means challenge websites that will not have triggered WOTUS allowing necessities beforehand would possibly fall inside EPA’s jurisdiction now. 

“The federal government right here is concentrated on whether or not the upstream is adversely impacting the downstream,” mentioned Carol Sigmond, a associate at New York Metropolis-based Greenspoon Marder. “They’ve clearly reached a conclusion, they usually’re making an attempt to reverse the impression by forcing the upstream to be cleaner.”

And whereas this iteration is labeled as a “last” rule by EPA, historical past reveals that just like the streams it covers, this model of WOTUS might be ephemeral, too. 

“It’s the last rule for this administration,” mentioned Buddy Cox, an environmental lawyer and associate at Bradley Arant Boult Cummings in Birmingham, Alabama. “However no, it’s not going to be the final we hear about it.”

Extra allowing required

As the brand new rule for WOTUS stands now, nonetheless, legal professionals say extra prices, allowing and mitigation may come into play for builders and the final contractors who work for them. 

“These new requirements will likely be interpreted extra broadly, and so now you’re going to be topic to the price and delay of getting a allow that you simply hadn’t deliberate for,” mentioned Frances Stella, an environmental and land use legal professional at Roseland, New Jersey-based Brach Eichler. “When you’re digging proper now on wetlands, end your digging.” 

One saving grace might be for initiatives which have already gotten an accepted jurisdictional willpower from the U.S. Military Corps of Engineers, that are sometimes good for 5 years.

“That doc maps out the figuring out the jurisdictional limits of WOTUS on a given parcel,” Holcomb mentioned. “With few exceptions, this new rule shouldn’t invalidate pre-existing AJDs.”

However different initiatives which can be pending might have to be revisited, particularly if lively work hasn’t but kicked off. 

“It’s actually a guessing recreation at this level,” mentioned Kosch. “What we’re telling our of us proper now’s let’s get a extremely good hydrologist, let’s get a extremely good wetlands marketing consultant to have a look.”