Waters of the United States (WOTUS) are based on the federal Clean Water Act. The goal of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation's water by eliminating pollution and propagating fish and wildlife. If that sounds a bit lofty and potentially difficult, it is because it is. The Courts are now an equal player in defining WOTUS through their many interpretations of the Clean Water Act (CWA).
Most non-experts associate federal jurisdiction of surface water to navigable waters and wetlands to those bordering navigable waters wetlands with no apparent surface water connection to (perennial rivers, streams, estuaries, or the ocean). This was the case many years ago. Today, federal jurisdiction is related to wetlands bordering with no connection to rivers, streams, estuaries, or ocean (isolated wetlands), and the water bodies that connect wetlands and isolated wetlands.
The wetland battles in recent decades are related to the isolated wetlands and the connectors as the Obama, Trump, and Biden administrations have gone back and forth over what can and should be regulated at the federal level under WOTUS and CWA. And because the federal programs are normally delegated to states to enforce, states have had to pass new regulations and rules in an attempt to meet the federal programs. The results – courts and confusion
In an example from North Carolina, the state passed legislation and rules to clarify the state's role in regulating the isolated wetlands in 2015 but took no action on the connecting water bodies. Under Trump, the interpretation was that the connectors were not included in federal jurisdiction. The state’s policy position patterned these interpretations. and was that these connectors were immaterial or could be regulated by a general statewide permit. A new state-level administration had a different opinion and a state court in Arizona shared that same opinion. So now a new state rule is moving through the rulemaking process to regulate those connectors. It gets more complicated as regulators originally adopted interim rules at the isolated wetland levels but have moved to a stricter criterion that matches larger wetlands.
So, what are the impacts on new project development? The short answer is more confusion and contradiction as regulators, legislatures, and the courts work through it over the next few years. For private sector projects that means more uncertainty, more risk, and more costs that could make or break the project. The same applies to projects performed by units of state and local government, but the increased costs will be borne by taxpayers. The bottom line is that the incredible shrinking site just got much smaller and more complicated.
JD Solomon, Inc. provides services at the nexus of the built and natural environment. Contact us for more information about project development services such as business case evaluations, risk and uncertainty analysis, third-party reviews, and stakeholder facilitation.
