By Myla Ablog, WRA, Inc., Aquatic Resources Permitting Specialist
On April 21, 2020, the Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (USACE) published the Navigable Waters Protection Rule (2019 Rule) that defines “waters of the United States” (WOTUS) and clarifies the limits of federal jurisdiction over wetlands, streams, and ditches under the Clean Water Act. This is an update to a previous WRA article, “Navigating Changes to Federal WOTUS Policy” posted on January 28, 2020.
The new rule by USACE and USEPA eliminates many aquatic areas that were previously considered WOTUS. The new rule will be effective on June 22, 2020; however, lawsuits have already been filed by several states and environmental groups contesting the new definition. Courts may reject or block the rule in which case jurisdictional determinations would be based on the 2008 guidance issued by the Corps following the Rapanos Supreme Court decision.
While the Rule retains federal jurisdiction over navigable waters, tributaries to those waters, and wetlands, it places significant limitations on that jurisdiction, including:
- Jurisdictional wetlands and waters must have a direct surface connection with a navigable water or tributary, or be separated from a navigable water or tributary only by a “natural” geographic feature
- Ephemeral streams and most ditches are not jurisdictional
- Groundwater is not jurisdictional
- Artificially irrigated areas and specific types of artificial lakes and ponds are not jurisdictional
- Water filled depressions incidental to construction and mining activities are not jurisdictional
- Groundwater recharge, water reuse, and wastewater recycling structures created in upland areas are not jurisdictional
- Waste treatment systems (e.g., stormwater basins and wastewater treatment ponds) are not jurisdictional
The USEPA and USACE have already 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, set for implementation May 28, 2020, in direct response to this anticipated rule. The State policy will assert 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, and WRA was active in providing input to SWRCB staff who developed that guidance. Formal trainings for RWQCB staff as well as the interested public have occurred are available at their website. Many WRA staff attended a training webinar on the new guidance in early May.
The new federal rule will become effective on June 22, 2020. The expectation is that USACE will operate under this new revised rule immediately after it is effective, and this may affect some pending applications by requiring a revised determination of jurisdiction to be made under the new regulation. Groups opposing the rule as both too narrow and too broad have already filed lawsuits against the new WOTUS definition.
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 firstname.lastname@example.org.