The Dotted Line: What’s up with WOTUS?

Abstract

In late December, as much of the country was on a holiday break, the Environmental Protection Agency quietly issued a new, final rule defining what constitutes the "Waters of the United States," or WOTUS, which are protected under the Clean Water Act. In January, 16 industry associations, including the American Road & Transportation Builders Association, the Associated General Contractors of America and the National Multifamily Housing Council, filed suit to block the rule. Stephen E. Sandherr, CEO of the AGC, for example, took issue with the intermittent aspect of the rule. The new final rule largely revives the definition of WOTUS from the Reagan era, while splitting the difference between the two previous administrations. Taylor Holcomb Courtesy of Jackson Walker "The Biden Administration's version of the rule should be considered a middle ground between the Obama and Trump-era WOTUS rules," said attorney Taylor Holcomb, a partner in the Austin, Texas, office of law firm Jackson Walker. "What we're telling our folks right now is let's get a really good hydrologist, let's get a really good wetlands consultant to take a look." For projects that may fall under the jurisdiction of the rule, attorneys say developers and contractors will often try to see if a different layout or design can increase the distance to any water in question, and thus mitigate the need for potential permitting. Where the buck - and the water - stop Who is responsible for making sure a project is compliant with the new rules could also be ambiguous, depending on how the contract is set up between an owner or developer and GC. Attorneys say that in general, it's on an owner to ensure a project site meets all governing regulations.