Nowhere does recently enacted legislation that defines “waters of the U.S.,” or WOTUS, for purposes of the federal Water Pollution Control Act have greater potential impact than in Michigan. That’s because our unique and abundant water resources and coastlines drive some of the largest industrial, agricultural and recreation economies in the nation.
This new regulation represents a dramatic expansion of federal jurisdiction and has given rise to a torrent of litigation. The WOTUS rule – which expands the universe of water bodies, wetlands, floodplain areas and other areas subject to federal jurisdiction – impacts Michigan’s status as one of only two states running its own wetland program. It also threatens to tilt the existing federal-state balance toward greater involvement of the U.S. Environmental Protection Agency and the Army Corps of Engineers in the development and use of our state’s land and water resources.
The rule has been met with plenty of criticism – and legal challenges from many states, including Michigan. On one hand, you have critics who label the rule as a power grab by the EPA and ACE. On the other side, environmental groups claim the regulation does not go far enough.
Objections to the rule include:
- It expands federal jurisdiction through new definitions of “tributary,” which includes water bodies and wetlands that have no real potential to impact traditional navigable waters.
- It would regulate any area that has a trace amount of water so long as it has a bed and banks and an ordinary high water mark.
- Regulated “tributaries” can include ephemeral streams (i.e., streams having no flow except as the result of precipitation) and intermittent streams if they flow through any water that ultimately reaches traditionally navigable water.
- With the increase in federally regulated waters comes a commensurate increase in the potential for citizen suits under the Water Pollution Control Act.
- Property values may be threatened as more lands become subject to permit requirements for development.
Scott Hubbard, a partner and member of the Resources, Energy and Environment Group, is tracking the litigation and its impact on Michigan. He can be reached at shubbard@wnj.com or 616.752.2157.