Landowners should be cautious about entering the wetlands permitting process given ongoing regulatory uncertainty surrounding the Biden Rule and how it could be implemented. What Now?Īs we await the Supreme Court’s Sackett vs EPA decision later this year, what should you do? The new congress may act to halt or delay implementation of the Biden Rule. House of Representatives Committee on Transportation & Infrastructure opposes the Biden Rule and published a list of comments from numerous industries and trade groups. 2, 2023 strongly condemning the new rule. The National Association of Homebuilders (NAHB) promptly issued a letter on Jan. There is widespread opposition to the Biden Rule from real estate development, agricultural, mining, industrial, and other organizations that represent the regulated public. Opposition to the Biden Rule & Significant Nexus Such an outcome would be a severe setback for landowners and the regulated community and would trigger litigation starting in federal district courts. It is also possible the Supreme Court could affirm significant nexus in its present form and uphold the Biden Rule. The Court could mandate the agencies to go back and modify the Biden Rule or possibly abandon this rule altogether. The Supreme Court could nullify and vacate significant nexus like it did to the Migratory Bird Rule, or it could limit the scope and applicability of significant nexus. The Court heard oral arguments in October 2022 and is expected to issue a ruling by summer 2023. The Supreme Court is currently considering the legal status of significant nexus in the case of Sackett vs EPA. Before the Biden Rule, significant nexus was not an official regulation and had no binding legal authority.Īround ten years ago the agencies informally applied significant nexus to support a CWA jurisdictional determination on the Sackett property in Idaho, and this sparked a long running lawsuit. The agencies have been promoting the concept of “significant nexus” for many years based on loose guidelines from the 2008 Rapanos Guidance memorandum. Significant nexus will radically change prior regulations, legal authorities, permitting, and enforcement procedures and bring previously exempt development activities under direct control of the federal government. Significant nexus will impose voluminous and complicated technical details related to navigable waters, wetlands, habitat, floodplains, ecology, climate change, and environmental justice for the purpose of determining CWA jurisdiction on a case-by-case basis. Accordingly, isolated wetlands, isolated ponds, ephemeral streams, ditches, detention ponds, and other so-called “waters” throughout America were broadly regulated based on the Migratory Bird Rule for 15 years from 1986 to 2001. The Migratory Bird Rule stipulated that any so-called “waters” that a migratory bird could use as habitat, were considered Waters of the United States (WOTUS) and thus regulated under Section 404 of the Clean Water Act (CWA). The Biden Rule and former Migratory Bird Rule share a wide-ranging and expansive scope of federal regulatory authority. Significant nexus is comparable to the breadth and scope of the former Migratory Bird Rule that was struck down in 2001 by the U.S. Significant nexus is an all-encompassing environmental/philosophical concept and legal paradigm. Wetlands rules have always been in a constant state of change and continue to expand with the establishment of significant nexus under the Biden Rule. Since its inception in 1977, the federal wetlands regulatory program has never evolved to become a well-organized, stable, and predictable environmental regulatory organization. The Biden Rule once again revises the definition of Waters of the United States (WOTUS) and codifies a new regulatory regime dubbed significant nexus. The Environmental Protection Agency (EPA) and Corps of Engineers (the agencies) recently published new rulemaking in the Federal Register on January 18, 2023, and it goes into effect on March 20, 2023. Insight and opinions regarding the regulatory expansion of federal Clean Water Act jurisdiction based on “significant nexus” by Jim Coody, P.E. Northern Counties Builders & Developers Division.
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