By Tyler Worthington
On June 29, 2015, the Environmental Protection Agency (EPA) and Army Corps of Engineers added a new rule that redefined “Waters of the United States” (W.O.T.U.S.) to the Federal Register and broadened what streams, rivers, ponds, wetlands, ditches, and waterways are subject to federal regulations under the Clean Water Act. This rule marks a continuation of one of the largest and most controversial disputes over governmental jurisdiction in water policy history. Recently, the U.S. Sixth District Court of Appeals issued a stay against the EPA and Army Corps preventing the rule from being implemented. This is probably good news for Florida.
Under the new rule, tributaries, “adjacent water bodies,” land within the 100-year floodplain, and, in some cases, water within 4,000 feet of a tributary or other covered water, are now under The Corps’ and EPA’s direct regulatory authority.
In a recent policy report from the James Madison Institute, M.Reed Hopper and Mark Miller, attorneys at Pacific Legal Foundation, claim “its [W.O.T.U.S. rule] implementation puts virtually all waters and much of the land in Florida under the control of the Army Corps of Engineers and the EPA”.
Under the provisions of the new rule, 34.5 percent of “other waters” are now under EPA jurisdiction, adding between 2.84 and 4.65 percent of total waters to EPA regulatory authority.
The EPA itself estimates this change in the Clean Water Act’s scope will cost Americans $158 million-$465 million a year. The land and livelihoods of many Floridians could be threatened by the high costs of these federal regulations. Most Floridians with land under the EPA’s jurisdiction would be required to obtain a federal permit to alter or use their property. The historical cost of federal individual permits average more than $270,000 (and rang from $7,000 to $1,530,000).
Now, property developers must obtain permits to fill any water or wetlands on the property. They are also required to make payments to a mitigation bank for those filled wetlands—payments that range between $34,000 to $217,800 per acre. According to Gregory Munson, former Florida Deputy Secretary of Water Policy and Ecosystem Restoration, “the new rule likely means that more waters, especially wetlands, on their [property owner’s] property will be categorized as ‘waters of the United States,’ and thereby subject them [property developers] to permitting and mitigation requirements under federal law more often.” Additional steps in the regulatory process mean a more lengthy approval process that could stall economic development in the state’s rural areas.
This new rule could also hinder local governments’ ability to build and maintain infrastructure such as new road construction, ditch management, water treatment facilities and stormwater systems because they will also have to apply for and receive federal permits for new projects and alterations.
While the EPA claims that the benefits of this regulation outweigh the costs, Dr. David Sunding, a professor of economics at the University of California, Berkeley, argues that the EPA underestimates the acreage that the proposed rule will regulate and does accurately consider the costs and increased number of required permitting actions.
Everyone wants to protect our nation’s waters but it’s important to consider whether that’s worth this rule’s cost to Floridians, especially if we are unsure of the exact cost. The U.S. Court of Appeals decision halting the implementation of this new rule is probably a good one for Florida property owners.