It’s been 50 years since Congress passed the Clean Water Act, but whether the statute applies to a given project or property remains in flux.
For decades the EPA and the Army Corps of Engineers, the federal agencies charged with enforcing the statute, applied it not only to easily recognizable waterbodies, but also to smaller tributaries and hydrologically connected wetlands. This created potential traps for landowners, who were not always aware or equipped to assess the potential for a connection between a flood-prone spot on their land and a lake or stream that might be some distance away.
The costs of an assessment to determine exactly where the statute applies can be substantial, but the consequences of failing to obtain a permit when it does apply can be ruinous.
Recently, the exact reach of the statute has been subject to a sort of tug-o-war as changing federal administrations have issued rules to define the statute’s terms and litigants have brought various lawsuits challenging those rules.
In 2015, the Obama administration issued a rule adopting broad definitions, only to have its enforcement stayed in court before the Trump administration delayed, repealed, and then replaced the rule with another one adopting narrower definitions. That rule was also promptly challenged in court.
At one point in 2018, one set of definitions applied in about half the states, and a different set applied in the rest with the rosters changing slightly as different states joined or abandoned lawsuits challenging one rule or another.
Now, the Biden administration has issued its own rule, which is set to go into effect on March 20. The new rule is similar to the 2015 rule in some respects, but is not identical. Moreover, last fall the Supreme Court heard oral arguments in a case called Sackett v. EPA that could moot the new rule and establish a different standard when the court’s decision is issued later this year.
Everyone would benefit from stability, but the only sure way to provide it might be federal legislation passed with bipartisan support. In the meantime, landowners and project managers should be wary of disturbing any area near water or with aquatic plant life.
* This article first appeared in The Journal Record on March 15, 2023, and is reproduced with permission from the publisher.