Beveridge & Diamond

Transition Alert - Land Use Issues: Wetlands

Beveridge & Diamond, P.C., December 10, 2008

Second in a special B&D series on issues likely to be embraced by the next administration.


Since the U.S. Supreme Court’s split decision in Rapanos v. United States, the scope of federal jurisdiction under the Clean Water Act (“CWA”) has confused landowners, courts, and regulators alike.  On January 20, 2009, the new Obama administration inherits this confusion.  While changes to CWA jurisdiction may be in store, permittee frustration likely will persist.  

Rapanos gave the Supreme Court the opportunity to define the scope of CWA Section 404 jurisdiction once and for all.  It issued a 4-1-4 ruling.  A tie.  Even worse, instead of articulating one uniform jurisdictional standard, the sharply-divided Court proposed two.  The first relies on water flow and “a continuous surface connection” between waters and wetlands; the second requires a “significant nexus” between wetlands and navigable waters.  Landowners seeking Section 404 permits for discharges to remote wetlands and streams uttered collectively, “thanks for nothing.”

To ease the growing confusion following Rapanos, in 2007 EPA and the Army Corps of Engineers did what these agencies often do – they issued guidance.  Unfortunately, this guidance further muddied the water by endorsing both Rapanos tests as acceptable standards to establish CWA jurisdiction.  Not surprisingly, applications have piled up and the Section 404 permitting process has slowed to a crawl.  Hoping to correct these problems, on December 2, the agencies revised their guidance.  Their efforts may bring little relief, however, because the new guidance still focuses on subjective factors while endorsing both jurisdictional tests from Rapanos.  At the same time, Democratic lawmakers and key players in President-elect Obama’s transition team already are pressuring the next administration to withdraw the agencies’ guidance. 

Even without the Obama administration’s intervention, the revised guidance could be a dead letter if a growing number of legislators have their way.  In 2007, Democrats introduced the so-called Clean Water Restoration Act (“CWRA”) to reverse a supposed narrowing of CWA jurisdiction under Rapanos.  The bill would replace the term “navigable waters” in the CWA with “waters of the United States,” which it defines broadly as “all interstate and intrastate waters and their tributaries … and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”

The proposed CWRA is a flashpoint for partisan debate.  Numerous Democrats support the measure as a means to preserve what they view as traditional CWA jurisdiction, while many Republicans denounce it for extending the statute beyond what Congress intended.  With greater Democratic majorities in the House and Senate following the November elections, sponsors of the CWRA already plan to reintroduce it early next year.  President-elect Obama’s transition team supports this measure, signaling that the incoming administration could influence the fate of the CWRA and the ultimate scope of CWA jurisdiction for years to come.

For permit applicants, it seems the more things change, the more they stay the same.  The freshly revised wetlands guidance will bring additional permitting delays and uncertainty, while EPA and the Corps learn to apply their new policies.  Of course, if the Obama administration withdraws the guidance, all bets are off.  Meanwhile, if Congress passes the CWRA, an entirely different set of problems might arise.  The proposed amendment arguably would reach wetlands and streams that are not jurisdictional under the current CWA and could spark a new round of lawsuits over Congress’ constitutional power to regulate commerce.  In short, the Section 404 permitting program could spiral even further into disarray.   

At Beveridge & Diamond, P.C., we have substantial experience with Clean Water Act jurisdiction and comparable state programs.  That experience equips us with the insight, tenacity, and common sense to navigate development and land use projects through these complex regulatory programs.  And where common sense fails, we have a history of successful court challenges to regulatory requirements, shaping the programs themselves to our clients’ interests.  From golf courses, to mixed-use communities, to mining operations, to industrial facilities, we have a national track record of success and helping our clients achieve their goals in the face of an uncertain regulatory regime.  As the Obama administration and Congress chart the course for CWA jurisdiction going forward, B&D will continue to bring our expertise to bear to forge more uniform and predictable outcomes for our clients no matter what changes are in store.  

Please call Fred Wagner (202) 789-6041, Pam Marks (410) 230-1315, Marc Goldstein (781) 416-5715, or Parker Moore (202) 789-6028 for further information.

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