Vol. 28, No. 7  ●  June 25, 2020

Navigable Waters Protection Rule in Effect

The new definition of Waters of the U.S. (WOTUS) – also known as the Navigable Waters Protection Rule – took effect Monday, June 22.  Introduced in January 2020 by the U.S Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), the revised definition is the subject of a number of lawsuits.  Wetland Studies and Solutions, Inc. (WSSI) has been following the Rule’s progress and the implications for current and future projects with impacts to wetlands and other jurisdictional waters, and we provide a brief synopsis of the implications here.  At the end of the article we have provided a list of our past Field Notes articles on this subject.

What is jurisdictional?

The Final Rule defines jurisdictional WOTUS in a much more limited fashion.  The new definition reduces what falls under federal regulations and removes protection for ephemeral streams, and expands the amount of wetlands that could be considered isolated; however, state agencies will still have the same jurisdiction as before.  The Commonwealth of Virginia takes jurisdiction over certain ephemeral streams with an “Ordinary High Water Mark” and isolated wetlands, so impacts to those resources will still be part of the state-level permitting process.  Maryland does not currently regulate ephemeral streams, so the new definition removes protection measures for these streams; the state does take jurisdiction over isolated wetlands.

How will permitting change?

The shift from federal to state oversight for impacts to some resources may precipitate a change in permitting as well.  Instead of obtaining permits from the different agencies that are similar (in terms of impacts), we may see permit authorizations that differ significantly between the federal and state agencies.   

In Virginia and other states where Nationwide Permits (NWPs) are in use, we have an additional regulatory layer in flux.  At this time, the Nationwide Permits are experiencing some changes (see our recent articles on NWP 12 and the NWP reissuance).  WSSI will continue to monitor these changes and will provide updates.

Is this process over now?

This process is not yet over.  Two rulings have occurred and a number of lawsuits have been filed against the EPA and the Corps contesting the legality of the new regulation.  Rulings include:

• The U.S. District Court, Northern District of California on Friday June 19, 2020 issued an order denying a request from a coalition of 17 states, the District of Columbia and the City of New York to halt implementation of the regulation.

• The U.S. District Court for the District of Colorado issued that same day a preliminary injunction for implementing the rule pending a review of the state’s claim that the EPA and Corps violated the Administrative Procedure Act in finalizing the rule.  The Trump Administration advised on June 24 they were preparing to appeal the decision.

Litigants and subjects of other cases include:

• The Chesapeake Bay Foundation (CBF) and ShoreRivers: addressing compliance with the Administrative Procedure Act.

• Southern Environmental Law Center (SELC) filed on behalf of James River Association, Friends of the Rappahannock, Roanoke River Basin Association, National Wildlife Foundation, and others: contending the Rule is in opposition to the goal of the Clean Water Act and disregards supporting science.

• The Pascua Yaqui Tribe, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Tohono O’odham Nation, and Fond du Lac Band of Lake Superior Chippewa: asserting that the new Rule exceeds agency statutory authority and is contrary to the Clean Water Act’s text, structure, objectives, and legislative history.

• New Mexico Cattlemen’s Association: asserting that the new Rule still oversteps federal authority and protects too many streams and wetlands.

A decision related to the CBF or SELC cases would affect application of the Rule in the Chesapeake Bay watershed, including Virginia and Maryland, and beyond.  The other current cases will determine if the new rule remains in effect, is  suspended or terminated in various portions of the country.  

How does this impact my projects?

WSSI is communicating frequently with regulators and other leaders to stay abreast of the changes, and we are assessing the implications for our clients.  For the most part we anticipate that the new Rule will not significantly impact projects in Virginia and Maryland.  The agencies are in the process of rolling out procedures and performing training for their staff to ensure consistent application of the new Rule.  There will certainly be some delays for issuing Preliminary and Approved Jurisdictional Determinations and certain permits by the Corps until processes are sufficiently in place.

For more information

We will continue to provide updates on the implementation of the new WOTUS definition, as well as impact permitting changes.  Please reach out to Ben Rosner, Christie Blevins, or Mark Headly in our Gainesville, Virginia office, Bob Kerr in our Virginia Beach office, or Mike Klebasko in our Millersville, Maryland office with any questions you may have regarding this issue or for any of your wetland delineation and permitting needs.  These changes will play out differently in Maryland and Virginia, so we encourage you to contact us.

Check out past issues in the Field Notes Archive.

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