By Carole Hawkins, [email protected]
A new federal rule to protect clean water could tie up development by mandating lengthy permitting at virtually every new subdivision in Northeast Florida.
The Waters of the U.S. Rule, issued by the Environmental Protection Agency, went into effect Aug. 28.
Confusion followed, with opponents saying the rule appeared to extend the jurisdictional definition of U.S. waters to virtually everywhere.
If so, it would mean a lengthy review by the U.S. Army Corps of Engineers before any property could be developed.
“You’re going to end up with a map of Duval County that’s going to have a lot of very small holes in it,” said Adam Hoyles, a wetlands scientist and vice president of operations for Onsite Environmental Consulting. “It’s basically going to cover all of Florida, except for parts of some of the inland counties.”
The EPA said the new rule does just the opposite — limiting the area that currently comes under agency review.
Hoyles wasn’t the only person concerned, though.
Seventeen states and North Carolina’s Department of Natural Resources sued. The U.S. Sixth Circuit Court of Appeals issued a stay Oct. 9.
The court in its ruling said, “A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.”
There isn’t a deadline on the court’s stay, said Janet Herrick, president of Onsite Environmental Consulting. It may last indefinitely. Or it could last six to 12 months while legal issues are worked out. It’s something the building community will want to pay attention to, she said.
The Waters of the U.S. Rule has its roots in the Clean Water Act, which protects U.S. waters from pollution. U.S. waters include coastal waters, tidal waters and waters touching more than one state.
Over the years, the act has been interpreted by the U.S. Army Corps of Engineers, which implements it, and also modified by court decisions.
The question has always been — which waters contribute pollution to U.S. waters and can therefore be regulated?
Rivers, tributaries and floodplains count. Wetlands next to the rivers, streams and floodplains count. At one time, any water visited by migratory birds counted, but that was reversed.
Isolated wetlands, ponds, ditches? It’s not so clear.
Supreme Court Justice Anthony Kennedy attempted to reign in the regulation in a 2006 opinion, saying only water with a “significant nexus” to U.S. waters would count.
But then, what did significant nexus mean? For eight more years the point was argued. The new rule was an attempt to clear up the confusion.
Except, Hoyles said, it doesn’t.
The rule says any water within the 100-year floodplain of a U.S. water and also any water within 4,000 feet of a U.S. water or covered tributary are subject to case-specific determinations.
Meaning regulators can say they count toward polluting U.S. Waters unless the developer can prove they don’t.
In Florida, 4,000 feet from any jurisdictional water covers a lot of territory, Hoyles said.
“For all practical purposes the Corps has said, we regulate everything unless we say we don’t,” he said.
The EPA, though, said that won’t be the impact.
Without the rule, “there are no geographic limits on its scope of jurisdictions,” the agency said in an email. Under the new rule, “waters beyond 4000 feet (of a jurisdictional tributary) are not subject to review.”
Environmental permits are not a new thing. In Northeast Florida, developers apply for a state wetlands permit for almost every development. Sometimes, also a federal one.
Too much federal permitting would be a problem, though.
Florida usually completes its permits within 30 days, said developer Greg Matovina of Matovina and Co.
An Army Corps of Engineers permit can take 18 months.
A developer wants to nail down all the costs before purchasing a property. And 18 months is longer than what’s normally used on a purchase contract between an owner and buyer.
“Most sellers will not wait that long,” said Matovina. “So, you’d have to make a decision as to whether you’ll risk proceeding without the permit.”
The more time it takes, the more money is at stake. After 90 days, it can be over $100,000.
“At some point, they have you by the throat,” Matovina said. “You just capitulate and you pay whatever fees.”
When developers impact a wetland, they purchase mitigation credits. It’s money the government uses to restore wetlands in another place. That too could be a problem.
There are a lot of options for developers to buy state credits in Northeast Florida’s land banks Hoyles said. Federal credits, not so much.
“It means right now you’d probably have to go through extraordinary measures to try to mitigate,” he said.