Washington, D.C. (April 21, 2020) - On April 21, 2020, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) finalized the Navigable Waters Protection Rule, which defines "Waters of the United States" (WOTUS), effective June 22, 2020. The rule seeks to create a bright line between federally regulated "waters of the United States" and those waters and wetlands that are subject to state and tribal jurisdiction. By establishing clear categories of waters for federal regulation, landowners, developers, and project proponents will be able to decide for themselves whether a federal permit is needed.

Long controversial in previous iterations, the rule is certain to be challenged in several courts across the country, causing potential disruption of the effective date in several states. Due to this uncertainty, we recommend that project proponents should check the status of the rule in the states where they are operating before taking any actions that may potentially impact waters and wetlands. We will you updated on these developments as they become available.

Background

Executive Order (EO) 13778, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." directed EPA and the Corps to review and modernize a 2015 rule revising the definition of "waters of the United States." Stakeholders and regulated parties widely criticized the 2015 rule as over-reaching, expensive, and the cause of project delays and stalled economic growth. Legal challenges in multiple state and federal jurisdictions also caused a great deal of regulatory uncertainty. The 2020 final rule aims to address these deficiencies. 

New Definition of "Waters of the United States"

The new rule defines four specific categories of waters that are subject to federal jurisdiction:

  • Traditional navigable waters and the territorial seas;
  • Perennial and intermittent tributaries of territorial seas and traditional navigable waters;
  • Certain lakes, ponds, and impoundments of jurisdictional waters; and
  • Adjacent wetlands (touching) otherwise jurisdictional waters.
  • The final rule also creates clear categories of waters that are excluded from federal jurisdiction, such as groundwater, ephemeral waters that flow only as a result of precipitation, prior converted cropland, and water treatment systems. These features are left to the states and tribes to manage.

Notably, the 2020 final rule eliminates the 2015 rule's case-specific "significant nexus test." The significant nexus test required an onerous analysis to determine whether an individual water feature possessed a substantial connection to other navigable waters. This determination necessitated an analysis of whether the water significantly affects the chemical, physical, or biological integrity of traditionally navigable waters. The agencies hope replacing the "multi-factored case-specific significant nexus analysis" with clearly defined categorically jurisdictional waters and categorically excluded waters will provide much-needed regulatory clarity.

The agencies are now focused on developing implementation guidance. The guidance will provide direction to Corps staff tasked with applying the new definition on the ground. Even with clear categories, there will be questions, particularly with regard to important definitions in the new rule such as "typical year," "ditch," and "groundwater" as the agencies begin relying on the rule for regulatory decisions. 

Conclusion

The rule is intended to allow landowners, regulators, and the regulated community to easily identify whether a water is a federally regulated "water of the United States" that potentially requires a permit under the Clean Water Act. Once effective, the rule is anticipated to reduce regulatory burden by reducing the time and cost of obtaining federal permits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.