WHAT IS going on with WOTUS?

On November 16, 2017 the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers (Agencies) proposed to amend the effective date of the 2015 Clean Water Rule (commonly known as the WOTUS Rule) defining the “waters of the US”. The proposal is to delay the effective date of the Rule until 2020 giving the agencies time to reconsider and revise the definition. The WOTUS Rule, which was originally slated to come into effect in  August 2017, was adopted by the Agencies under the Obama administration in a 2015 Rule titled “Clean Water Rule: Definition of Waters of the United States”. In June 2017, the Agencies proposed to rescind the WOTUS Rule following an executive order under the Trump Administration to review and revise the definition of the “waters of the US”. The WOTUS Rule affords federal protection for about 22 million acres of wetlands and over two million miles
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Wetlands

W&M has worked with Imperium Holdings during their acquisition of large tracts of undeveloped lands in the North Texas area to delineate wetlands and waters of the U.S. and to prepare a 404 permit application and obtain 401 water quality certification for impacts during development.



Is the EPA Re-Defining Waters of the U.S.?

Do you need a permit to fill in that ditch on your property?  How about that low spot that floods for a week or two every once in a while?  To the layperson, it can be a surprise which “waters” the Corps of Engineers requires a permit to fill, excavate, or impound.  Which “waters” does the Corps consider under their jurisdiction?  That depends on the definition of “waters of the U.S.” and new proposed rules take a stab at clarifying the definition. The current rules and guidance for defining “waters of the U.S.” require site-specific evaluation and risk  being overturned by the Corps or EPA upon review.  Environmental consultants and regulators are both aware of the uncertainty that exists.  The Corps and EPA have  issued draft rules to define “waters of the U.S.” in their attempt to add certainty and predictability to the regulatory process.  The draft rule is out in the April 21,
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Costs for Filling Streams Jump in DFW Market

The cost of filling a stream during development in the DFW market jumped over-night with implementation of the new 50-50 rule in October 2013.  When project plans require impacting a stream (e.g., filling, piping, re-routing, etc.) the U.S. Army Corps of Engineers requires that those impacts be off-set by purchasing stream mitigation credits as part of a “wetland” permit.  Stream mitigation is parallel to the wetland mitigation process.  The reader may be more familiar with the fact that when a project such as a residential development requires filling a jurisdictional wetland, the developer may have to purchase wetland credits as part of the wetland permit.  Jurisdictional streams are addressed in the same permitting process, but now more restrictions have been placed on how impacts to streams are compensated. Stream mitigation credits are created by businesses that restore a stream, such as a degraded segment of the Trinity River, thereby creating
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