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Redefining WOTUS Rule Threatens Industry

On February 28, 2017, President Trump signed an executive order instructing the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACOE) to begin a roll back of the Waters of the United States (WOTUS) rule. While there are many issues raised within the Order, an important component with potential far-ranging impacts on the mitigation industry is its directive that the EPA and USACOE should consider adopting the Scalia test from Rapanos v. United States , 547 U.S. 715 (2006).

In Rapanos , the United States Supreme Court ultimately rendered a split (4-1-4) decision, meaning there is no “controlling” opinion to which the lower courts are bound. However, since the 2006 decision, the courts have routinely concluded that Justice Kennedy’s concurring opinion, which focused on the “significant nexus” test, controls. Conversely, Justice Scalia proposed a test that excluded many of the waterways we now consider, under Justice Kennedy’s test, to be those falling under the purview of the federal government’s protection.

Limiting the scope of federal protection will reduce the jurisdictional limits of those wetlands and surface waters. This will negatively affect the requirement and, therefore, the demand for federal mitigation credits. And while this may seem like a boon to developers and to the economy as a result, the cost of failing to mitigate today may prove too expensive tomorrow.

For additional information on this topic, see the U.S. News article below.
U.S. News: Trump's move to redefine water rule threatens wetland banks

Stetson University’s professor Royal Gardner, quoted within the article above, recently received the Society of Wetland Scientists President’s Service Award, highlighted in the news release below. Thank you for your contributions to our industry.


Audubon of Florida is pleased to count Mitigation Marketing as one of our partners in conservation in Florida. We have found Mitigation Marketing to be a true innovator in the mitigation industry. Dennis Benbow and his staff are pioneering important efforts in both the Wetlands and Conservation banking fields. Mitigation Marketing is demonstrating that carefully thought out Wetlands and Conservation mitigation banks can be an important factor in the effort to conserve and restore many thousands of acres of what is best in Florida’s wildlife habitats and natural resources.

Charles Lee
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