By Justin Semion, WRA, Inc., Director of Technical Services
On January 23, 2020, the Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (USACE) finalized the long-anticipated Navigable Waters Protection 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 new rule will significantly restrict the role of the USEPA and USACE in regulating discharges of fill or other pollutants into wetlands and other waters compared to previous definitions. The rule will become effective 60 days after it is published in the Federal Register, and is expected to face immediate opposition and litigation after that date. The pre-publication version of the final rule is available here.
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
One of the rule’s primary stated goals was to simplify the definition to enable easier understanding of what constitutes a jurisdictional wetland or water. Despite this emphasis, aquatic resources exist in a continuum rather than in fixed categories, so many key issues remain to be resolved through subsequent guidance and clarification:
- What is the threshold of flow that separates an ephemeral stream from an intermittent one?
- Will the USACE require hydrologic modeling to determine areas that may be flooded during a typical year?
- What types of geographic features might be considered “natural” features that trigger jurisdiction over nearby wetlands and waters (such as “subterranean rivers” described in the rule)?
- How is jurisdiction applied if an artificial pond is constructed partially within a jurisdictional water and partially outside of that water?
The USEPA and USACE have already issued clarifying fact sheets accompanying the prepublication rule to address a few of these questions. Absent further clarification, sound science will always rule the day, and WRA’s knowledge of the science behind these questions can be relied upon when these issues inevitably arise.
Application in California
In California, the State Water Resources Control Board (SWRCB) has adopted a new policy, set for implementation in May of 2020, in direct response to this anticipated rule. The State policy will essentially negate the rollbacks of federal jurisdiction, enforcing State jurisdiction over most areas that would now be outside of federal jurisdiction. This would shift much of the balance of power for permitting projects affecting aquatic resources to the State, and specifically to the Regional Water Quality Control Boards (RWQCB). The SWRCB is in the midst of developing guidance for the implementation of the new State policy, and WRA has been active in providing input to SWRCB staff who are developing that guidance. Formal trainings for RWQCB staff as well and the interested public are being planned for early Spring of 2020.
We anticipate that the rule will be published in the Federal Register sometime within the next month and will become effective 60 days following publication, making the regulation active sometime in April or May of 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. The rule is also expected to face immediate opposition and litigation by environmental groups, with court decisions potentially resulting in at least temporary reversion back to the regulation and guidance currently in place. The future of federal regulation over waters and wetlands would then be dependent on a combination of court rulings and the 2020 presidential election.
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. Justin Semion is Director of Technical Services at WRA responsible for ensuring that all of our staff are aware of and responsive to the ever-changing environmental landscape. Please contact him with questions about the new policy at 415.524.7531 or firstname.lastname@example.org.