Two New Major Environmental Law Updates

You Should Know About

There are two new Environmental hot topics that can affect your developments. We describe them below. Our team is monitoring these and other important topics and have experience navigating these issues. Please contact us should you have any questions regarding how these topics may affect your projects. 

1. New Definition of Waters of the United States

Has Been Released

On August 28, the EPA and the Corps released the pre-publication version of the revised definition of "Waters of the United States" to conform it to the definition set forth in the May 25 United States Supreme Court decision, Sackett v U.S. It is a direct final rule and will be effective immediately upon publication.

The revisions to the rule are very straightforward; “Waters of the United States” that are subject to regulation under the Clean Water Act has been revised to eliminate jurisdiction based on whether or not waters or wetlands “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of” waters which are: (i) currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) the territorial seas; or (iii) interstate waters. Interstate wetlands are no longer jurisdictional, and wetlands “adjacent” to a jurisdictional water are jurisdictional only if they have a “continuous surface connection” to it; the revised rule replaces the prior definition of “adjacent” with this narrower definition. 

The rule will likely be challenged by regulated interests on two points: (1) the lack of an exclusion for ditches and (2) the failure to define “adjacent” to add “and indistinguishable from”, which was a key point in the Sackett opinion. This omission could significantly broaden the reach of that term.

The following chart from the public fact sheet released by the EPA explains what has been revised in the rules, which can be found at 33 CFR s. 328.3 (Corps rule) and 40 CFR 120.2 (EPA rule):

Exclusions and exemptions were not changed. The agencies are hosting three public webinars to provide updates on the definition of “Waters of the United States” on September 12, 2023 (3pm-4pm Eastern Time), September 13, 2023 (1pm-2pm Eastern Time), and September 20, 2023 (3pm-4pm Eastern Time). Each webinar will present the same information. You must register to attend the webinar, and capacity is limited. Click here for more information.

2. Florida Burrowing Owl Guidelines to be Revised

On August 2, 2023, the Florida Fish & Wildlife Conservation Commission solicited input from stakeholders on draft revisions to the Conservation Measures and Permitting Guidelines for the Florida Burrowing Owl which make the guidelines more stringent and which increase mitigation requirements for impacts to owl foraging habitat, which term is also being expanded to include virtually every type of low-growing vegetation, including golf courses, wetlands, ball fields, etc. 

Yes, FWC has promulgated guidelines that will require you to write them a check if you redevelop a golf course, grass parking lot, or other already-developed land that burrowing owls may use to find food! FWC had three webinars on the draft revisions and has put them on a fast track for finalization. Comments were due August 31, although extensions have been requested due to Hurricane Idalia. The draft changes are expected to be presented to the Commission for adoption at its December 2023 meeting. For a link to the draft revisions, click here.