By: John Kolanz – Published in the BizWest Thought Leaders column in July 2019
The Clean Water Act’s reach holds considerable interest for those in development, oil and gas, and agriculture. Many in those sectors have closely followed recent battles to identify the waters that the Act protects, known as “Waters of the United States” or “WOTUS.”
Work in protected waters requires a permit. Obtaining such a permit (often called a “Wetlands Permit”), and then complying with its terms, can be an arduous mission replete with high costs and project delays. However, failure to do so can have harsh consequences.
The popular press gave ample coverage to the Obama Administration’s controversial 2015 rule that expanded the Act’s reach, and the Trump Administration’s recent counter-efforts to drastically reduce it. Lost in the fireworks, however, is a new development in North Dakota with important consequences for Colorado.
A federal court in North Dakota recently lifted an injunction that had kept the United States Army Corps of Engineers from ever applying the Obama Rule in Colorado. Corps offices in Colorado are presently transitioning to the Obama Rule. Whether they complete this transition is still uncertain, in part because Colorado water interests are considering entering the litigation in North Dakota to try to reinstate the injunction.
The Obama Rule currently applies in almost half the states in the country. If implemented in Colorado, its broader scope will capture many projects that did not require Corps authorization under the prior permitting regime. It can also bump a project from a relatively user-friendly general permit (or “Nationwide Permit”) into a much more burdensome individual permit. This can be particularly disruptive, for instance, for large development projects that require years to complete, and which have employed a permitting strategy that may no longer be valid.
CWA jurisdictional uncertainty can have enormous consequences for your project. An experienced environmental attorney can help you work through this fluid situation.