Comments to the Proposed Definition of WOTUS Due Soon

September 15, 2014
Jonathan E. Rinde
MGKF Special Alert

WOTUS? In the acronym-filled world of environmental law, WOTUS stands for "waters of the United States."  The United States Army – Corps of Engineers ("Corps") and the U.S. Environmental Protection Agency have proposed revisions to the definition of WOTUS that have the possibility of greatly increasing the regulatory jurisdiction of the Corps in its Clean Water Act Section 404 permitting program, also known as the wetlands permitting program.  See 79 Fed.Reg. 22188 (April 21, 2014).

Consider the following: 

1.  Under the new rules, many more areas will be subject to federal jurisdiction as WOTUS under the Corps’ wetland permitting program, including stormwater ditches that may carry water only a few weeks in a year. 

2.  With more areas defined within the Corps’ jurisdiction, more Section 404 permits from the Corps will be required.  To obtain a permit from the Corps, the applicant needs to investigate other subjects like historic buildings and archeological sites, and threatened and endangered species.  These additional studies add costs and delays to implement projects. 

3. Sewer lines typically follow the grades of property to be gravity fed.  These lower lying areas are now prime candidates to be included within the Corps’ permitting jurisdiction.  With respect to new development, roads and utility lines typically have to cross wetlands and waters, and therefore need a permit from the Corps. 

4.  Pennsylvania has its own wetlands and waters permitting program pursuant to the Dam Safety and Encroachments Act, sometimes known as the Section 105 permitting program. The state’s permitting program accepts the Corps’ jurisdiction of wetlands.  Therefore, should the Corps’ jurisdiction increase, the state’s permitting jurisdiction will increase as well.

5.  As more areas are declared “waters of the United States,” the permitting requirements for other programs, like NPDES wastewater discharge permits, will also increase.

The House of Representatives passed the “Waters of the United States Regulatory Overreach Protection Act of 2014,” a bill to stop the implementation of the proposed regulations, on September 9, 2014.  Passage of the bill in the Senate is uncertain.   Comments on these proposed regulations are due on or before October 21, 2014.

MGKF's Jonathan Rinde and Rodd Bender are assisting the International Council of Shopping Centers in reviewing draft comments on the proposed rule prepared on behalf of a coalition of trade associations that will be impacted by this rulemaking. If you are interested in learning more or want to submit comments, please contact Jonathan or Rodd at (484-430-2325) or (484-430-2317), respectively.