Fred Wagner was quoted in Law360 on May 22, 2018, in an article about whether the federal government can determine if a construction project affects water bodies protected by the Clean Water Act.
According to the article, while the courts and the Trump Administration continue to sort things out, industries like, construction, will have to navigate a confusing Waters of the United States (WOTUS) determination system.
Mr. Wagner said, "It seems like the process could drag on forever. The bottom line for the construction industry is that they're not happy, because there’s going to be continued, district by district adjudication of permit applications with different standards, and there's not going to be a national standard anytime soon."
Wagner noted that if and when the Trump administration does complete its new WOTUS definition, it will — just like the Obama-era version — be challenged in court and the opponents will probably seek an injunction to keep it from going into effect until the litigation is complete. And because district courts have jurisdiction to rule on the validity of any rule defining waters of the U.S., it's possible some courts may find the rule passes muster, while others don't.
"You could very well end up with different standards and different results in different parts of the country. It's almost the worst case scenario for development and construction stakeholders: The one thing they crave more than anything else is certainty. And I cannot think of a less certain environment for this rule than right now," he said.