2019 WOTUS Rule Implemented Except in Colorado

By Myla Ablog, WRA, Inc., Aquatic Resources Permitting Specialist

On June 22, 2020, the Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (USACE) implemented the new Navigable Waters Protection Rule (2019 Rule) that defines “waters of the United States” (WOTUS) in all states except Colorado where a federal judge stayed the implementation. This is an update to an earlier article I wrote, “Federal Definition of WOTUS Published in the Federal Register” posted on May 29, 2020.

The new rule by USACE and USEPA eliminates many aquatic areas that were previously considered WOTUS. While the new rule is effective, lawsuits have been filed by several states and tribal nations contesting the new definition.

The USEPA and USACE have issued clarifying fact sheets accompanying the 2019 Rule to address frequently asked questions.

Application in California

In California, the State Water Resources Control Board (SWRCB) has adopted a new policy, which was implemented May 28, 2020, in direct response to the new WOTUS rule. The State policy asserts jurisdiction over wetlands that have been excluded in the 2019 Rule. The Regional Water Quality Control Boards (RWQCB) will have much of the “handle” or responsibility for permitting projects affecting aquatic resources to the State. The SWRCB has developed guidance for the implementation of the new State policy. Formal trainings for RWQCB staff as well as the interested public have occurred and are available at their website.

Next Steps

The new federal rule was effective on June 22, 2020, except in Colorado. This may affect some pending applications by requiring a revised determination of jurisdiction to be made under the new regulation. A revised determination may add some additional time to completing jurisdictional documents. Groups opposing the rule as both too narrow and too broad have filed lawsuits against the new WOTUS definition, so it is currently under litigation.

WRA staff are constantly monitoring for regulatory policy changes that affect our work and our clients’ projects. This is one of the most significant changes to regulatory policy in recent years, and we are ready and available to discuss the potential short- and long-term implications for current and future projects that you may be planning. Myla Ablog is the Aquatic Resources Permitting Specialist at WRA responsible for ensuring that all of our staff are aware of and responsive to the ever-changing aquatic regulatory landscape. Please contact her with questions about the new policy at 415.524.7273 or myla.ablog@wra-ca.com.