NWPR Update: EPA Proposes New Old Wetland Rule; The Clock is Now Ticking for Florida’s Developers

Adams and Reese LLP

Adams and Reese LLP

An Arizona district court decision right before Labor Day effectively put the pre-2015 wetlands jurisdiction rule back in effect for most states, eliminating changes made under both the Obama and Trump administrations. (See our take on that ruling here.) The U.S. EPA and U.S. Army Corps of Engineers signed on November 18, 2021, a proposed rule that would officially re-establish the pre-2015 Waters of the United States (WOTUS) rule for the country (often referred to as the “Rapanos Rule”). This action begins a formal rule adoption process that begins with publication of the proposed rule in the Federal Register and the solicitation of public comments over a period of -60 days. Depending on the nature and significance of the comments received, revisions may be made, and ultimately a final rule will be published in the Federal Register. This last step is typically accompanied by a delayed effectiveness date of 30 days or less.

This move should come as no surprise, as it is consistent with the Executive Order signed by President Biden on January 20, 2021, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” Included in the President’s EO was a directive to the U.S. EPA to review the 2020 Navigable Waters Protection Rule (NWPR). Now that a final rule has been proposed, industry clients should consider participating in the public comment process.

The rule change, once finalized by the federal agencies, also carries extra significance for Florida. Federal Rule 40 C.F.R. §233.16(b) provides states with delegated federal programs, such as Florida’s recently approved 404 Wetlands Program, with up to twelve months to adopt changes in federal regulations. The twelve-month countdown clock marking the end of NWPR in Florida may start as early as the Spring of 2022, depending on how quickly the new rule is finalized. Of course, the inevitable litigation that will surely follow may result in further delays to the effectiveness of the Rapanos Rule (and potentially grant extensions of life to NWPR in Florida).

The advice to clients in Florida might be, if you already have a Florida 404 permit or you plan on obtaining one in the near term, you’d better get started on the authorized activities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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