Agricultural reservoir impounding ephemeral waters not considered Waters of the U.S. under 2020 NWPR but may be under the pre-2015 regulatory regime.
The U.S. District Court for the District of Arizona issued an order on August 30, 2021 to vacate the 2020 Navigable Waters Protection Rule (NWPR, commonly referred to as the ‘Trump Waters of the U.S. Rule’). As a result, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) have reverted to interpreting Waters of the U.S. via the pre-2015 Waters of the U.S. regulatory regime while a new formal definition of Waters of the U.S. is determined. An additional consequence of this ruling has resulted in the USACE vacating all Approved Jurisdictional Determinations (AJD) that were based on the 2020 NWPR where a USACE action is still required. As such, USACE districts may no longer finalize any regulatory action that relies on a NWPR AJD to document geographic jurisdiction. That is, if a project has not yet received USACE approval or permits, an AJD decided under the NWPR would not be valid to complete the permit process. If a project has already received its final permits and approvals from USACE, then no changes are anticipated from this District Court ruling.
Currently, for any such projects in the review and approval process, the USACE is requesting applicants choose from one of three options to move their project forward: 1) obtain a new AJD decided under the pre-2015 regulatory regime; 2) use a preliminary jurisdictional determination (PJD); or 3) delineation of aquatic features along with those to be impacted by project (no jurisdictional determination at all).
Typical ephemeral stream not considered a Waters of the U.S. under the 2020 NWPR but may be under the pre-2015 regulatory regime.
The USACE is still receiving internal guidance and is expected to have implications for numerous projects nationwide both currently in process with the USACE and those that have already been issued. Further, legal experts predict challenge of this guidance is almost certain given the implications.
If you have any questions regarding your project status or impacts from this District Court ruling, contact our regulatory permitting specialists and stay connected with WRA to get additional updates on this matter.