On 8 September, the US Environmental Protection Agency and the US Army Corps of Engineers published a new federal regulatory rule to conform with an earlier US Supreme Court decision on the reach of the CWA in Sackett v. EPA.
The new rule represents the most far-reaching change in US federal permitting that I have seen in more than 45-years of combined government and private-sector experience.
The ultimate result is a substantial narrowing of the US Clean Water Act’s (CWA) geographic scope and the determination of waters and wetlands subject to federal jurisdiction.
Regulatory crosswinds
The regulatory turbulence inherent to publishing a rule of this magnitude has the potential to induce wide-ranging shockwaves across myriad sectors, communities, states, and tribes and the wind industry will almost certainly be among those that will feel the effects of this change. For individual wind projects, the fundamental unknown is whether the turbulence will create winds blowing in a favorable or unfavorable direction.
The short answer is, it depends.
The new rule substantially reduces areas where onshore wind projects require a CWA permit, which in some cases could remove the need for a permit altogether, or eliminate mitigation requirements. That said, construction of onshore wind support infrastructure that crosses retained jurisdictional waters, such as utility lines, roads and other linear features, will continue to require a CWA permit. Indeed, offshore wind projects, which typically require utility lines that come onshore, would likely encounter the same obligations as onshore wind projects.
In some cases, compliance with the federal laws protecting animals, plants, historic properties, and other cultural resources could become even more challenging and costly. Lacking the umbrella of CWA jurisdiction, compliance for private projects without a federal permit requirement is typically more administratively burdensome and often takes longer.
Projects could progress faster…or slower
It’s reasonable to predict that some wind projects outside the scope of the CWA will see accelerated schedules by forgoing the comprehensive CWA permit process. However, removing CWA jurisdiction also removes other federal actions that were routinely included within the broader process. Without the CWA link, it’s reasonable to extrapolate that some projects could experience schedule delays due to other federal or state approval processes that are extremely thorough and time consuming when not strapped to a CWA permit action.
Also, mitigation requirements have not changed for CWA permits requiring appropriate and practicable mitigation for impacts to jurisdictional waters. However, since the new rule substantially reduces waters under CWA jurisdiction, the overall requirement for mitigation should be less, thus potentially reducing overall project costs.
Mind your language
Definitions are vital here because the new rule includes language related to ‘bounded shorelines established by natural fluctuations in water levels’, ‘upstream reach of federal jurisdiction to relatively permanent waters’ and ‘contiguous wetlands that are indistinguishable from those waters’ (the new definition of ‘adjacent’).
Experts politely nod with firm consensus that the new rule clearly eliminates federal jurisdiction over “ephemeral” and “isolated” waters.
These details are important and it’s critical to have project team members well-versed in determining the applicability of the regulatory change to your specific project.
The big question
Wind power leaders in the C-suite face a more daunting decision: Should we proceed with a project under the assumption that the CWA no longer applies, incurring the risk of a potential federal enforcement action later, or exercise strategic patience by conducting a thorough due diligence review, including early engagement with the jurisdictional federal agencies?
In my opinion, you will increase chances of making faster progress on your project by investing time and effort up front to fully inform your decision-making process. Only then will you be able to answer the “it depends” question.
David Barrows is a senior adviser at Dawson & Associates and former head of the regulatory office at the US Army Corps of Engineers
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