Note: 2024 will see many developments in in federal permitting. Some will likely come from court decisions while others may come from federal regulatory decisions. During the next few weeks, Dawson & Associates’ experts in federal environmental permitting will share perspectives on how this process may change in 2024 and what this could mean for permit applicants.
In 2023, we saw big changes in the definition of Waters of the Unites States (WOTUS) and a landmark Supreme Court decision in Sackett v. Environmental Protection Agency. In general, and overly simplified, fewer wetlands will be considered “jurisdictional” and therefore will not need federal permits to impact.
Additionally, because 2024 is an election year, there will be discussion in Washington about protecting the environment while trying to make development and home construction more affordable. Although the legal and procedural impacts of Sackett and WOTUS will be debated, and maybe litigated for years, industry, developers, and the general public are feeling the practical impacts now.
The United States currently has a deficit of approximately 6.5 million housing units. With mortgage rates remaining stubbornly high, homebuilders and developers are trying to find ways to make their products more affordable and pre-construction costs are always a target. Realistically, I see two potential strategies that developers should consider carefully.
If possible, adjust plans to build around wetlands on a site, while acknowledging this tactic can be inefficient and could lead to a lower unit count, or
Invest the time (usually a year or more) and money to seek the appropriate permits, and then pay to mitigate the wetland impacts. Historically, this approach could add tens of thousands of dollars to the price of a home. However, with fewer wetlands defined as jurisdictional, and other factors remaining constant, the price of a home will likely be reduced, more units can be built, and the nation will start to chip away at its housing shortage.
From the developer’s view, less jurisdiction is a game-changing event leading to higher profits, better quality of life, and housing shortage reduction. Those opposing new developments fervently focus on the potentially catastrophic environmental costs less jurisdiction allows. For decades prior to the landmark 1972 Clean Water Act (CWA), our nation’s wetlands were largely ignored. Studies showed that the United States was losing nearly 500,000 acres of wetlands annually. Since then, scientists agree that the CWA’s wetland protections have dramatically slowed wetlands loss and increased improved our environment.
From water filtration/purification to flood control and storm damage reduction to recreation and tourism, conserving and protecting wetlands is crucial for maintaining the balance of ecosystems. It would be great to have less expensive housing options but if flood risk increases and water quality decreases, a cheaper house is of little solace.
Next year could be pivotal for federal wetland permitting. In 2024, the implementation of new WOTUS rules and definitions, confusion in the engineering and construction industries, impacts of a potential change to the Supreme Court’s “Chevron deference,” and an election cycle all point to the benefits of thoughtful analysis when navigating federal water and environmental policies.
Edward R. Fleming
A member of the Dawson team since 2022, Col. (Ret) Edward R. Fleming spent 25 years in the US Army Corps of Engineers and commanded of the Corps’ New Orleans and Charleston Districts.