Lay of the Land
There are no surprises in the President’s proposal to vastly narrow the definition of wetlands and other waters protected by the federal Clean Water Act. Within a month of taking office in 2017, the President issued an executive order directing EPA and the Corps of Engineers to begin that process.
Nor are there any surprises in the new definition itself. As expected, EPA and the Corps of Engineers propose to replace the Obama-era definition – which was based upon the Supreme Court’s Rapanos decision – with a much narrower definition proposed by late Justice Antonin Scalia.
Under the new rule, the Clean Water Act’s protections will extend only to truly navigable rivers and their tributaries, as well as wetlands abutting those rivers or having a direct hydrologic connection. The Clean Water Act will no longer protect millions of acres of wetlands found in different habitat types around the Country, including most of the vernal pools and other seasonal wetlands found throughout California’s rangelands and foothills.
While landowners and developers in California may be inclined to celebrate, the Trump administration’s proposal likely will make it even more difficult to develop California real estate than it already is.
First, the proposal all but assures the success of a pending rulemaking at the State Water Board that would create a brand new and extremely strict wetlands permitting program in California. The new program is on a fast track for adoption in January, and it will be an unspeakable burden for developers and landowners. Although the stated justification for this program is to “fill the gap” left by the Trump administration’s retreat from environmental regulation, the new program – which is filled with internal conflicts and inconsistencies – actually makes wetland regulation in California more rigorous, rather than just “filling the gap.” We have been in the trenches on this program, opposing it on behalf of homebuilders and agriculture, and fear that the President’s announcement will have just lost the battle for us.
Second, and this is more subtle, the loss of federal jurisdiction over California wetlands under the Clean Water Act complicates any effort to comply with the Federal Endangered Species Act (ESA). The most expeditious way to get ESA coverage is to do it through the Army Corps of Engineers during the wetland Clean Water Act process. If a landowner or developer does not have federal wetlands on his or her property, he or she must secure ESA coverage directly from the Fish and Wildlife Service. This process is more protracted, often taking years longer than the original process would have taken, and is subject to stricter legal standards. The administration’s proposal would throw most California projects into this more complicated process, which is called “Habitat Conservation Planning.” Although Habitat Conservation Planning is an important and valuable tool, the limited staff at the federal wildlife agencies will be hard-pressed to address the greatly increased workload.
Undoubtedly the President’s proposal will be litigated if adopted. It is directly contrary to the controlling opinion in the Supreme Court’s Rapanos decision, which is exactly what the Obama regulation was intended to reflect. So the administration will have to tell the Supreme Court that they got it wrong the first time. Given Justice Kennedy’s retirement, they may be successful in doing so, but it will be an interesting dance.