New Brief Article: What Does WOTUS Mean for the Timber Industry and Forest Landowners?

My friends at the Southeastern Wood Producers Association recently published an article I wrote for them in their quarterly magazine, Out of the Woods: What Does WOTUS Mean for the Timber Industry. I've written several times about this issue and the Waters of the United States Rule. The problem comes down to the extent of the federal government's reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce. The article is excerpted below.

On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory reach under the Clean Water Act (CWA). The CWA prohibits the discharge of pollutants into waters of the United States without a permit. Violators are subject to penalties of thousands of dollars per day (even if unintentional) or costly lawsuits by neighbors or environmentalists.

Many of the waters subject to federal jurisdiction are easy to identify: navigable water bodies, rivers, streams, creeks, impoundments of those waters, and wetlands directly adjoining any of those waters. Beyond those, though, what qualifies has been unclear for decades. A series of U.S. Supreme Court cases created confusion because the justices could not agree on just how far federal agencies could reach. This meant that, for many small waters and wetlands, the Corps had to perform a site-specific jurisdictional determination. While burdensome to the agencies, this analysis at least forced them to use science to determine whether more-isolated waters and wetlands had a “significant nexus” with a water that was subject to federal jurisdiction.

Now, the federal agencies have adopted WOTUS, a rule that will mean fewer case-by-case analyses. While this may make the process more “efficient” for the agencies, that comes at the expense of more areas automatically being deemed as falling under federal jurisdiction simply because the agency says so, rather than because of any scientific connection to another water.

Thus, WOTUS now designates all tributaries and waters and wetlands “adjacent” to or “neighboring” other jurisdictional waters as under federal jurisdiction. In some cases, waters and wetlands 1,500 feet away from another water are considered “neighboring,” even if there is no hydrologic connection. Even ephemeral drains and ditches that water only flows in after a rain are now almost always under federal jurisdiction.

These changes may not seem important at first, since the timber industry has traditionally been excluded from many permitting requirements. For example, CWA permits are not required to manage the runoff from common forestry practices, such as site preparation, thinning, control burns, and road construction, as long as they are undertaken in accordance with standard industry practice. Even so, WOTUS is important to watch because it will expand the need for obtaining CWA permits for some commonplace practices, such as for application of herbicide and fertilizers in and near wetlands and for construction of some roadside ditches near wetlands. Prudent professionals will need to think twice about past common knowledge.

WOTUS has provoked fierce opposition. Legislation to block it is progressing, but it would likely face a presidential veto. At least half the states are challenging WOTUS in court. A federal judge has temporarily stopped the rule’s implementation, but it is not clear whether this will last. Therefore, the ultimate fate of WOTUS remains unclear. For now, the timber industry should be actively engaging elected officials to encourage them to take action.

As I mentioned last week in a post about another article I wrote on this topic, this issue is moving fast and there are a few updates since I wrote the article:

• The Government Accountability Office found that EPA broke federal lobbying and propaganda laws in its zeal for pushing the rule forward. 
• The Senate voted to kill the rule; the House did the same recently; and President Obama has vowed to veto any such measures.
• A federal judge enjoined the rule's implementation across the entire country, including Florida. However, it's not clear how long this injunction will last, and the legal wrangling is expected to continue for some time.

I'll have a more comprehensive update on the status of the litigation in the coming week.

New Brief Article: How Does WOTUS Affect Your Clients' Wetlands?

Many thanks to the Hillsborough County Bar Association, which published an article I wrote for their Lawyer magazine entitled How Does WOTUS Affect Your Clients' Wetlands? Readers of my blog will be familiar with my earlier posts on the Waters of the United States Rule. The question this new rule raises is how far does the federal government's power reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce? The article is excerpted below.

On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. 80 Fed. Reg. 37054 (June 29, 2015). The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory jurisdiction under the Clean Water Act (CWA).

The CWA prohibits the discharge of pollutants into waters of the United States without a permit. The outer boundaries of what qualifies as a jurisdiction water have been unclear for decades. A series of U.S. Supreme Court cases have indicated that, while the agencies’ jurisdiction is broad, it does not extend to the outer reaches of the Commerce Clause. See Rapanos v. United States, 547 U.S. 715 (2006); Solid Waste Agency of Northern Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); Riverside Bayview Homes, Inc. v. United States, 474 U.S. 121 (1985).

One of these cases, Rapanos, created a great deal of confusion because the plurality, a concurrence by Justice Kennedy, and the dissent all developed different jurisdictional tests. The agencies have focused on Justice Kennedy’s “significant nexus” test. Under it, if a water has some appreciable impact on a traditionally-regulated water under the CWA (like a navigable water), then that water is also jurisdictional. This has meant that many small waters and most wetlands have been subject to the “significant nexus” analysis on a case-by-case basis. This led to a great deal of informal agency guidance, including wetland delineation manuals that attempted to use scientific methods to aid decision making.

According to EPA and the Corps, WOTUS increases regulatory certainty by reconciling past practices, science, and case law. It does so by expanding the scope of waters and wetlands that are categorically classified as jurisdictional, rather than subject to a case-by-case review. Tributaries and waters and wetlands “adjacent” to or “neighboring” jurisdictional waters are now categorically jurisdictional. In some cases, waters and wetlands 1,500 feet from a jurisdictional water are considered “neighboring,” even if there is no hydrologic connection. See 33 CFR § 328.3(c)(2). WOTUS also codifies some exclusions that are are based on agency practice, including for minor ditches and small artificial ponds. See 33 CFR § 328.3(b).

WOTUS has provoked fierce opposition. Legislation to block it is progressing, but it would likely face a presidential veto. At least ten federal law suits are challenging the rule (with at least half the states as plaintiffs), alleging that WOTUS expands federal jurisdiction beyond the CWA’s limits. A federal judge recently enjoined the rule’s implementation in thirteen states, but this did not include Florida. Therefore, while the ultimate fate of WOTUS remains unclear, what is certain is that Florida landowners will be required to comply with it in the short term. What is also certain that this new rule will result in more Florida wetlands being categorically defined as jurisdictional rather than being subject to case-by-case analysis.

I'll give a full update post on this topic soon, but since just since my article was published in late 2015:

• The Government Accountability Office found that EPA broke federal lobbying and propaganda laws in its zeal for pushing the rule forward. 
• The Senate voted to kill the rule; the House is expected to do the same soon; and President Obama has vowed to veto any such measures.
• A federal judge enjoined the rule's implementation across the entire country, including Florida. However, it's not clear how long this injunction will last, and the legal wrangling is expected to continue for some time.

 Stay tuned.This issue isn't going away anytime soon.

Development Permit Extension Deadline Approaching

I previously wrote about how the extensions to some development permits that were made available by Governor Scott's executive orders declaring states of emergency due to severe flooding and a tropical storm. Section 252.363, Florida Statutes, provides for deadlines for landowners and holders of these development permits who are seeking to take advantage of these extensions. While one deadline applicable to only a few counties has already passed, the deadline for the Governor's statewide emergency declaration is January 25, 2016. Landowners with eligible development permits should act quickly.

Why Exactions Law Should Bring Property Rights Advocates Cheer in the New Year

When even progressive scholars throw their hands up in the air over the strength of an area of property rights law, you know it's time for those of us who believe in strong property rights to take note. Professor Timothy Mulvaney at Texas A&M has done just that in his latest paper, forthcoming in the Harvard Environmental Law Review, "Legislative Exactions and Progressive Property." 

In it, Prof. Mulvaney covers the debate of whether the stringent judicial review of exactions provided to administrative exactions also applies to legislative exactions. The debate here is over what the government can demand from a landowner before approving a discretionary permit. In three important cases - Nollan, Dolan, and Koontz - the U.S. Supreme Court has held that the government must show that the demand is related to the harms that will be caused by the landowner's activities and that the demand is roughly proportionate to the ills the government seeks to remedy. 

The Supreme Court has explained that these rules apply no matter whether the government ultimately approves or denies a permit application and no matter whether the government demands money, road building, or anything else. Compared to other areas of property rights law, the Supreme Court has been remarkably clear that the landowners must be protected from such "unconstitutional conditions" by government. Governments, though, dislike such strict rules, and some have argued that these rules only apply to "administrative" demands, such as those by an executive or bureaucrat, and not to "legislative" demands, such as an ordinance that makes demands from everyone. As others have argued better than I can, the Takings Clause  and the Due Process Clauses of the Constitution do not distinguish between the branches of government in protecting landowners. 

In his article, Prof. Mulvaney essentially asks: should proponents of "progressive property" (read: fans of weak personal property rights) support making such a distinction for its practical consequences? He concludes:

Scholarly debate continues on the question of whether the heightened scrutiny of the Supreme Court’s decisions in Nollan and Dolan should be applicable in takings cases involving exactions that result from generally applicable legislation. Proponents of progressive conceptions of property have strong first-order reasons to support immunizing legislative exactions from such heightened scrutiny, reasons that are grounded in the checks and balances of democratic government, the likelihood of reciprocal advantages stemming from legislation, and an aversion to judicial usurpation of the legislative process. However, this Article raises the possibility that distinguishing between legislative and administrative exactions could produce two secondary effects that ultimately prove detrimental to progressive property’s aims. 

First, pressing the idea that administrative exactions are significantly more likely to abuse property owners than legislative exactions necessarily risks marginalizing case-by-case administration across the board, which could lead courts to incorporate the heightened scrutiny of Nollan and Dolan in takings cases involving administrative acts unrelated to exactions. Second, formally recognizing the legislative-administrative distinction could prompt governmental entities to shy away from administrative actions in favor of broad, unbending legislative measures to avoid heightened scrutiny, and deserting case-by-case administration can come with weighty social costs, given that it is administration that at least in certain instances can better respond to varied and unpredictable development impacts and invariably focuses attention on the affected parties’ human stories. 

It follows that both remaining options in the wake of Nollan, Dolan, and Koontz—subjecting legislative exactions to either a deferential level of takings scrutiny or the heightened standard to which administrative exactions currently are subject—pose significant complications for proponents of progressive conceptions of property. In the end, then, perhaps progressive property scholars might concentrate more readily on evaluating and advocating for other potential boundary principles in exaction takings law, or, even more dramatically, reinvigorate the long dormant and admittedly uphill battle to reverse Nollan and Dolan in their entirety.

That is, Constitutional questions aside, even proponents of weak personal property rights should be wary of making a distinction between administrative and legislative exactions. Why? Exactly because the Supreme Court has extended such clear, strong protections to administrative exactions. Those proponents would do better to focus their attention elsewhere, says Prof. Mulvaney.

Take heart, fans of private property rights: progress is being made. And that should bring you cheer in this New Year.