By Roland Murphy | AZBEX
“A good compromise is when both parties are dissatisfied” – Larry David.
If David’s quote is true, the Biden administration’s recent revision to the Waters of the U.S. Rule (also known as the Clean Water Rule) as the follow-up to a May U.S. Supreme Court ruling on the extent of federal powers under the 1972 Clean Water Act may be considered nearly perfect.
Environmentalists and their political supporters are decrying the update, saying it will irrevocably harm wetlands, watersheds and water supplies. Development industry groups say the revision fails to provide important definitions, enshrines uncertainty and bureaucratic impediments to vital projects, and fails to fully address the scope and spirit of the SCOTUS ruling.
Whatever one’s position, the new “final rule” ensures wrangling over water policy and its development impacts will remain a hot button issue into the next election and beyond.
The WOTUS Rule
The WOTUS Rule was published in 2015 by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers and expanded federal oversight of water resources, including enhanced authority over development on private land.
The regulation was presented as a clarification of federal water protections under the Clean Water Act of 1972 and described as a means of more consistently defining and implementing federal protections over resources. The primary issue of contention was the Rule’s expanded definitions of what constituted a waterway subject to federal jurisdiction.
The original act’s language applied to “navigable waterways” and established oversight authority under the Interstate Commerce Clause of the U.S. Constitution. Supreme Court cases in 2001 and 2006 expanded the Act’s reach to include areas that were no longer navigable or consistently flowing but that could be dredged and restored. Those decisions generated additional confusion and led to the 2015 rule.
The updated rule is generally seen as a win for the development community. Rose Law Group Founder and President Jordan Rose said, “This ruling should have major implications on property owners throughout Arizona, some of whom have been prevented from developing their land because of the approach to wetland protection. Now, development can occur.”
