A proposed rule change jointly proposed by the Environmental Protection Agency and the U.S. Army Corps of Engineers has developers and environmental consultants fearful that its adoption could lead to longer development timelines, added costs and future litigation. The rule change, which has yet to go into effect, is aimed at aligning federal enforcement of the Clean Water Act with a series of U.S. Supreme Court rulings on what constitute “jurisdictional” waters.
There are two aspects of the prospective change that raise concern. First, the rule would give the EPA and Army Corps of Engineers authority over streams and waterways with a “significant nexus,” or connection, to waters already covered by the Clean Water Act. Second, it is unclear how certain upland ditches and isolated wetlands will be treated. A new interpretation could cause farmers and developers to obtain a Corps permit for projects that currently don’t require one.
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