Property Owners and Developers May Get “Bogged Down” by New Wetlands Regulations

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in on Nov 1, 2016.

Please allow me to dispel a nasty rumor. Wetlands are not a creation of Mother Nature, but rather are created by a cacophonous collection of interminate governmental regulations and court decisions. This paradox is about to get even more pronounced.

The EPA and the US Army Corps of Engineers jointly released a proposed rule on March 25, 2014 that would seem to be the most sweeping change in many years to the rules governing federal Clean Water Act (“CWA”) jurisdiction over wetlands. The object is to roll up decades of court decisions and agency interpretations into a single rule. In Rapanos v. United States, 547 U.S. 715 (2006), a four-vote plurality of the Supreme Court held that regulated “navigable waters” are limited to “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features,'” such as streams, oceans, rivers and lakes. Wetlands with a “continuous surface connection” to such bodies of water, so that “there is no clear demarcation between them,” are “adjacent to” such water bodies and also are covered.

Specifically, the proposed rule would overhaul the definition of “waters of the United States” in the administrative regulations which implement the various sections and programs of the Act. “Waters of the United States” will have an expanded definition. Six categories of waterbodies would be “waters of the United States” by rule (e.g., per se jurisdictional waters), and would fall under the jurisdiction of the CWA with no additional analysis required. These waterbodies are traditional navigable waters or that unquestionably share a significant nexus to navigable waters.

An additional category, “other waters,” consists of waterbodies not covered by the first six categories, which are not themselves navigable waters and may or may not share a significant nexus to navigable waters in and of themselves. “Significant nexus” as the proposed rule would define, would mean that the water at issue significantly affects the chemical, physical or biological integrity of a traditional navigable, interstate water or territorial sea. These “other waters” under the proposed rule would be jurisdictional only upon a case-specific determination that they share a “significant nexus” to waters of the United States rather than the express heavy reliance on the Commerce Clause in the existing rule.

The EPA and Army Corp. have posited that the proposed rule “will not add to or expand the scope of waters historically protected under the CWA.” In contrast, critics have suggested that the proposed rule is “…the greatest expansion of federal control over land and water resources in the 42-year history of the Clean Water Act” and could subject “…every small business and farmer…to EPA fines if they disturb a puddle on their land.”

Whether you are a supporter or critic, the impact on private property rights will be murky. As with most changes in governmental regulation, this issue is likely to be bogged down in rulemaking and litigation for years to come, leaving uncertainty as the only constant.