{"id":12457,"date":"2023-01-31T10:58:31","date_gmt":"2023-01-31T18:58:31","guid":{"rendered":"https:\/\/essential.construction\/news\/the-dotted-line-whats-up-with-wotus\/"},"modified":"2023-01-31T10:58:31","modified_gmt":"2023-01-31T18:58:31","slug":"the-dotted-line-whats-up-with-wotus","status":"publish","type":"post","link":"https:\/\/essential.construction\/news\/the-dotted-line-whats-up-with-wotus\/","title":{"rendered":"The Dotted Line: What\u2019s up with WOTUS?"},"content":{"rendered":"

\"-\"<\/a>
\n<\/p>\n

\n
\n

This feature is a part of \u201cThe Dotted Line\u201d series, which takes an in-depth look at the complex legal landscape of the construction industry. To view the entire series,\u00a0click here<\/a>.<\/em><\/p>\n<\/div>\n

In late December, as much of the country was on a holiday break, the Environmental Protection Agency quietly issued a new, final rule defining what constitutes the \u201cwaters of the United States,\u201d or WOTUS, which are protected under the Clean Water Act.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

The debate surrounding that rule has been anything but quiet since.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

In January, 16 industry associations, including the American Road &\u00a0Transportation Builders Association, the Associated General Contractors of America and the National Multifamily Housing Council, filed suit to block the rule. They argue it\u2019s unconstitutionally broad and encompasses a \u201cstaggering range of dry land and water features.\u201d\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

The rule applies to both large navigable waters and other adjacent waterways \u2014 think the <\/span><\/span><\/span><\/span><\/span><\/span>Mississippi River\u2014 but would also cover small and intermittent streams, wetlands and ponds that might only hold water seasonally or after a heavy rain. In other words, the kinds of bodies of water that are often present on development sites.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

Stephen E. Sandherr, CEO of the AGC, for example, took issue with the intermittent aspect of the rule.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\u201cJust because a piece of land occasionally gets wet doesn\u2019t make it a navigable waterway,\u201d Sandherr said in a release<\/a>. \u201cTry as it might, the administration cannot redefine the reality of existing law or constitutional limits on executive power.\u201d<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

For its part, ARTBA said the rule<\/a> would slow delivery of transportation projects and \u201cthreatens to nullify the benefits of the 2021 federal infrastructure law.\u201d\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

The outcome of the industry groups\u2019 litigation, filed in the U.S. District Court for the Southern District of Texas, is still unknown. A pending decision from the U.S. Supreme Court in a separate case related to WOTUS that\u2019s due out this summer could also further impact the issue.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

But environmental and construction attorneys say the new rule, if it stands, could add up to $1 million per acre to development projects that are adjacent to or have a connection with waters of the United States. It is set to go into effect March 30.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\n
\n
<\/div>\n<\/div>
\n

Jim Kosch<\/p>\n

Courtesy of McCarter & English<\/p>\n

\u00a0<\/p>\n<\/figcaption><\/figure>\n

\u201cAll in, you\u2019re talking consultant preparatory work, barriers for a new buffer zone and maybe doing mitigation work to enhance a wetland somewhere else,\u201d said attorney Jim Kosch, a partner in the construction group at Newark, New Jersey-based law firm McCarter & English. \u201cIt\u2019s really only limited by how demanding the regulators want to be, and how far the developer is willing to go to accommodate them.\u201d<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

What\u2019s WOTUS?<\/span><\/span><\/strong><\/span><\/span><\/span><\/h3>\n

The definition of what constitutes WOTUS, and is thus subject to regulation and permitting by EPA and the U.S. Army Corps of Engineers, has ebbed and flowed for years.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

Both the Obama and Trump Administrations issued their own rules to define WOTUS, but they were ultimately blocked in federal courts. That prompted the current administration to seek a more \u201cdurable\u201d solution that would give guidance to both regulators and covered stakeholders.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

The new final rule largely revives the definition of WOTUS from the Reagan era, while splitting the difference between the two previous administrations.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\n
\n
\"A<\/div>\n<\/div>
\n

Taylor Holcomb<\/p>\n

Courtesy of Jackson Walker<\/p>\n

\u00a0<\/p>\n<\/figcaption><\/figure>\n

\u201cThe Biden Administration\u2019s version of the rule should be considered a middle ground between the Obama and Trump-era WOTUS rules,\u201d said attorney Taylor Holcomb, a partner in the Austin, Texas, office of law firm Jackson Walker.\u00a0\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

But there\u2019s also enough wiggle room in the new rule, Holcomb says, to expand what kind of waterways are covered. That\u2019s because a new test of whether a project \u201csignificantly affects\u201d a covered body of water will come into play as well.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\u201cThat will likely result in an increased number of water features, including wetlands, being subjected to government oversight,\u201d Holcomb said. <\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

That means project sites that would not have triggered WOTUS permitting requirements previously might fall within EPA\u2019s jurisdiction now.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\u201cThe government here is focused on whether the upstream is adversely impacting the downstream,\u201d said Carol Sigmond, a partner at New York City-based Greenspoon Marder. \u201cThey’ve obviously reached a conclusion, and they\u2019re trying to reverse the impact by forcing the upstream to be cleaner.\u201d<\/p>\n

And while this iteration is labeled as a \u201cfinal\u201d rule by EPA, history shows that like the streams it covers, this version of WOTUS could be ephemeral, too.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\n
\n
\"A<\/div>\n<\/div>
\n

Buddy Cox<\/p>\n

Courtesy of Bradley Arant Boult Cummings<\/p>\n

\u00a0<\/p>\n<\/figcaption><\/figure>\n

\u201cIt\u2019s the final rule for this administration,\u201d said Buddy Cox, an environmental lawyer and partner at Bradley Arant Boult Cummings in Birmingham, Alabama. \u201cBut no, it\u2019s not going to be the last we hear about it.\u201d<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

More permitting required<\/span><\/span><\/strong><\/span><\/span><\/span><\/p>\n

As the new rule for WOTUS stands now, however, lawyers say additional costs, permitting and mitigation could come into play for developers and the general contractors who work for them.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\n
\n
\"A<\/div>\n<\/div>
\n

Frances Stella<\/p>\n

Courtesy of Brach Eichler<\/p>\n

\u00a0<\/p>\n<\/figcaption><\/figure>\n

\u201cThese new standards will be interpreted more broadly, and so now you\u2019re going to be subject to the cost and delay of getting a permit that you hadn\u2019t planned for,\u201d said Frances Stella, an environmental and land use attorney at Roseland, New Jersey-based Brach Eichler. \u201cIf you’re digging right now on wetlands, finish your digging.\u201d\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

One saving grace could be for projects that have already gotten an approved jurisdictional determination from the U.S. Army Corps of Engineers, which are typically good for five years.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\u201cThat document maps out the identifying the jurisdictional limits of WOTUS on a given parcel,\u201d Holcomb said. \u201cWith few exceptions, this new rule shouldn\u2019t invalidate pre-existing AJDs.\u201d<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

But other projects that are pending may need to be revisited, especially if active work hasn\u2019t yet kicked off.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\u201cIt\u2019s really a guessing game at this point,\u201d said Kosch. \u201cWhat we\u2019re telling our folks right now is let\u2019s get a really good hydrologist, let\u2019s get a really good wetlands consultant to take a look.\u201d<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n