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USACE, EPA Issue 2020 Navigable Waters Protection Rule

On April 21, the U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency (EPA) issued the Final Navigable Waters Protection Rule (NWPR) by publishing in the Federal Register a final rule that defines the scope of waters federally regulated under the Clean Water Act (CWA).

Defining what constitutes a “water of the United States”  is the second step in a comprehensive, two-step process intended to review and revise the definition of ‘‘waters of the United States’’ consistent with Executive Order 13778 (Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’) signed on Feb. 28, 2017. This rule replaces the 2015 Waters of the U.S. Rule issued by the previous administration.

You can read the full final rule at the link here.

The NWPR outlines those waters protected under Section 404 of the Clean Water Act. In the final rule, the agencies interpret the term ‘‘waters of the United States’’ (i.e. jurisdictional waters) to encompass:

1) The territorial seas and traditional navigable waters 

2) perennial and intermittent tributaries that contribute surface water flow to such waters

3) certain lakes, ponds, and impoundments of jurisdictional waters

4) wetlands adjacent to other jurisdictional waters.

Some notable changes from the previous rule are the exclusion of ephemeral streams from jurisdiction and the change in the interpretation of “adjacency” when determining jurisdiction. Under the NWPR, ephemeral features “whose flow consists solely of surface water flowing or pooling only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools” are no longer considered jurisdictional under the CWA. The NWPR also defines perennial to mean “surface water flowing continuously year-round” and intermittent to mean “surface water flowing continuously in certain times of the year and more than in direct response to precipitation”. Intermittent or perennial streams that would otherwise be ephemeral without a wastewater discharge are still considered jurisdictional.

The NWPR now defines “adjacent wetlands” to include all wetlands that abut (touch at least one point or side of) a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water. Wetlands that are inundated by flooding from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water in a typical year are also adjacent. Some wetlands separated by a natural or artificial features may be considered adjacent to a jurisdictional water under the NWPR. Wetlands are no longer considered adjacent and jurisdictional if their only adjacency is to another wetland.

This rule becomes effective on June 22, 2020. As with previous statutes defining waters of the U.S., litigation is anticipated and could delay implementation of the rule. For now, local USACE districts have informed Freese and Nichols that they will begin enforcing the new rule for all projects after the effective date. Applicants with pending or ongoing Section 404 permit applications will remain regulated under current guidance unless they choose to appeal to the USACE. We expect the USACE and EPA to promulgate additional guidance in the coming months as the agencies begin applying the NWPR in practice.

Have questions or concerns about your project? 

Our Environmental Scientists are available to discuss how this new rule may affect your project and potential options for Section 404 permitting. Please contact any of your local area experts to discuss your specific needs or concerns:

Fort Worth, Oklahoma and Georgia

Michael Votaw : 817-735-7312 or mpv@freese.com

Dallas

Richard Aldredge: 214-217-2384 or rga@freese.com

Austin

Tom Dixon: 512-617-3140 or Tom.Dixon@freese.com

Houston

Dan Gise: 713-600-6808 or drg@feese.com

North Carolina

Ian Jewell: 919-418-8430 or Ian.Jewell@freese.com

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