The only constant is change, as they say. Throughout the last several administrations, we’ve seen tons of environmental regulations changed, reversed, and updated … not least of them the government’s stance on water.
Federal laws protecting our nation’s water resources have seen consistent amendment, and this year was no exception. WOTUS, the fun acronym for “Waters of the United States,” is a contentious term at best. Broadly defined under the Obama Administration and rolled back significantly over Trump, it once again reared its head during the recent Sackett v. EPAruling.
Since then, many states have rapidly implemented or re-communicated their state waters regulations. They’re not the only ones: tribal and local governing bodies are also likely to step in to clarify or enhance their regulations as well. This has left developers and environmentalists alike scratching their heads over what to do regarding disputed wetlands and other properties.
Let’s take a quick look at what that ruling has meant for water regulations across the board, and what that in turn means for environmental due diligence as a whole.
Sackett v. EPA: A Quick Reminder
In this landmark case, the Environmental Protection Agency (EPA) claimed that a ditch on the Sacketts’ property constituted WOTUS by virtue of being connected to a stream that connected to wetlands that connected to Priest Lake, which is considered “navigable waters.”
In their May 2023 ruling, the Supreme Court clarified the definition of WOTUS, first put forth in the federal Clean Water Act (CWA). It narrowed such waters to those that were continuously connected to interstate navigable waters, overruling the EPA and dramatically retracting federal jurisdiction over US waterways.
This has meant a significant overhaul to environmental permitting, requiring fewer reviews and permits overall – a win for developers.
Now, protecting environmental quality can never be a simple process for our nation. Since the release of the “final" ruling” regarding wetlands post-Sackett vs. EPA, debate and unrest have arisen, leaving the federal government to return to the drawing table for a final water ruling.
The thing is, changes in environmental laws don’t stop at one regulation. Rather, they can impact other requirements on multiple different levels. In some ways, this can make permitting even more confusing.
States Step in Where Federal Regulations Bow Out
In the wake of the Sackett v. EPAcase, many steps have scurried to put out their own regulations, restate their current rules, or reinvest in water.
Unfortunately, such is not slated to be the case immediately. New federal movement such as the Fiscal Responsibility Act actually provides for various interest groups to abuse judicial review power and slow down development further.
If the phrase “hot mess” comes to mind, well, yeah. Happily, you can easily research state bills under construction using the National Conference of State Legislatures’ Environment and Natural Resources State Bill Tracking Database. This will show you everything that’s going on in every state, water-wise and beyond.
As states from New York to California update their wastewater and water pollution laws and wetlands definition in response to Sacket vs. EPA, it is pivotal that developers stay up to date with these changes.
As seen with state air pollution laws following the Clean Air Act, states continue to take federal laws one step further, building upon them and making them their own.
Tribal and Local Regs Matter Too
The states aren’t the bottom of the ladder, and they often don’t protect tribal territories. Where federal agencies and state laws fail to protect a certain waterway, tribal and local governments can step in as well.
“The states whose interests the majority sought to protect might extend state law coverage … but they cannot protect the Tribes within their borders,” the American Bar Association explains. “One last consequence of Sackett, therefore, may be that Tribes increasingly use their own Clean Water Act authorities to protect wetlands and smaller waters on tribal lands from polluting activities.”
Where none of the above apply, local governments may have jurisdiction over land and waterways that can affect development as well. Ensuring hazardous waste doesn’t enter state waterbodies is under tribal, and local governments’ jurisdiction of pollution control.
However, it’s not just about the regulations themselves.
Increased Funding: A Double-Sided Coin
Wherever we see increased funding at any level, we’re likely to see positive impacts on development – tax incentives, for instance – and a concomitant increase in regulations, which puts a greater assessment onus on developers. Hence, changes in federal regulations are a double-sided coin.
Trying to wade through regulations that a) ease development or b) impinge upon it can cause headaches of the first order. For that reason, you need a system in place to determine which rules impact your project, at what levels, and what you need to do about it.
Like so many things, that’s easier said than done.
Stay in the Know: Transect Can Help
From the Endangered Species Act(ESA) to the National Environmental Policy Act (NEPA), resource conservation is a complicated process. While our main goal with these regulations is protecting environmental and public health, these environmental issues are difficult for developers to manage.
If you’re feeling a little sweaty at the idea of keeping up with such rapidly changing regulatory requirements, you’re not alone. The good news is Transect is here to help.
Our database is always up to date on the latest rulings, so when you run an environmental report through our risk assessment and due diligence desktop software, you can feel sure you’re getting the latest information. Plus, you can see exactly where your stands project or parcel stands in minutes rather than weeks or months – and save tons of money doing it.
Automation tools like Transect ensure we accelerate development to fight climate change while ensuring toxic substances on a development site don’t harm human health or impact our water quality.