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The Rush is On for Jurisdictional Determinations

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by Mitchell J. Klein

The EPA and the Corps of Engineers are seeing an unprecedented amount of requests for determining whether or not an activity impacts a Water of the United States and triggers Clean Water Act restrictions and permitting. As the lawsuits challenging the current rule begin to move forward, and the current administration faces a potential expiration date, more and more companies and developers are scrambling to get the Jurisdictional Determinations made.

Fearful that the more conservative definitions and approaches under the new rule will be thrown out, or that a new administration will change it once again, companies are seeking to get the Determinations made as soon as possible.

And the EPA and Corps of Engineers are cooperating. Determinations that used to take months to be made are now being turned around in a matter of days.

Once the determination is made, it is generally good for 5 years. So even if a new administration changes the rule, or it is otherwise found to be invalid, the determination will still be good and the company need not comply with CWA permitting requirements. Of course, this carries considerable risk: After 5 years, activities may need to be taken to drastically alter what has been in place. Companies may want to carefully evaluate whether or not rushing for a Determination that will lessen their costs and regulatory burdens in the short term may wind up costing them even more money down the road.