MN Petitions “WOTUS” – Infrastructure Management Plan Implications

At the end of May 2015, the much-anticipated final rule on “Definition of Waters in the U.S.” (“WOTUS”) as an amendment to the Clean Water Act, was published by the EPA and the U.S. Army Corps of Engineers.

While everyone greatly appreciates the effort made with this document, many U.S. county governments are disappointed by the result.

Minnesota was one of many States worried that the new WOTUS rule will increase the scope of government involvement, adding expensive regulations and unnecessary federal government overreach.

New permits would be needed to clean away debris or vegetation out of ditches, potentially causing massive cost and delay to transportation and other infrastructure projects.

Currently, the local government has dealt with these issues directly, using different techniques for management, and they would like it to stay that way if possible.

As a result of this, back in July 2015, the Association of Minnesota Counties appealed to Senator Amy Klobuchar (who has helped them in the past) to try and stop the rule passing.

The Star Tribune reports:

“The resulting rule is also poorly written, with vague guidance provided for various water bodies, such as whether drainage ditches are considered waters of the U.S.

The lack of clarity in terminology is almost certain to result in litigation, adding additional costs and further delays for critical infrastructure projects.

This rule represents just one of many programs that would affect local governments, as well as farmers and other property owners, through unnecessary, complex, and costly regulations and requirements.

Added costs for county governments would mean added costs for taxpayers. We are all concerned about clean water for our families and communities, but the additional costs should come with assurances of better environmental outcomes.”

Subsequent to this the nationwide implementation of the Rule has been blocked by the Sixth U.S. Circuit Court of Appeals in an October 2015 judgment.  

As of March 2016, when this blog post is published, litigation around WOTUS is ongoing.

Federal rules, regulations, and legislation when enacted and legally implemented form part of the minimum legal requirements that local governments must include in their levels of service.

As such, rules and regulations do affect how local governments can manage their infrastructure effectively and therefore must be taken into consideration when developing Infrastructure Asset Management plans.