Navigable Waters Protection Rule (formerly the Clean Water Rule)

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On April 21, 2020, the EPA and USACE (jointly the "Agencies") had published in the Federal Register the final rule, "Navigable Waters Protection Rule" (NWPR), which has a scheduled effective date of June 22, 2020. Thus, what has been generally known for some time as the Clean Water Rule is replaced with the Navigable Waters Protection Rule. Just the name change suggests a new emphasis in implementing the Clean Water Act.

The Agencies described the final rule as implementing the overall objective of the CWA "to restore and maintain the integrity of the nation’s waters by maintaining federal authority over those waters that Congress determined should be regulated by the Federal government under its Commerce Clause powers, while adhering to Congress’ policy directive to preserve States’ primary authority over land and water resources. This final definition increases the predictability and consistency of Clean Water Act programs by clarifying the scope of 'waters of the United States' federally regulated under the Act."

The NWPR defines "jurisdictional waters" to mean "waters of the United States" including: "(1) The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; (2) Tributaries; (3) Lakes and ponds, and impoundments of jurisdictional waters; and (4) Adjacent wetlands."

In addition, the NWPR defines "non-jurisdictional waters" to expressly exclude "waters of the United States" (i.e. jurisdictional waters). The non-jurisdictional waters include: (1) waters or water features that are not identified as jurisdictional waters; (2) groundwater, including groundwater drained through subsurface drainage systems; (3) ephemeral features, including ephemeral streams, swales, gullies, rills, and pools; (4) diffuse stormwater run-off and directional sheet flow over upland; (5) ditches that are not jurisdictional waters, and those portions of ditches subject to specific conditions; (6) prior converted cropland; (7) artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease; (8) artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters; (9) water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel; (10) stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off; (11) groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and (12) waste treatment systems.

The impact of the NWPR is to significantly limit the extent of federal regulation under the CWA. One of the more wide-ranging revisions is the inclusion of "ephemeral features" in the definition of non-jurisdictional waters. Ephemeral features include all "surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall).

Similarly, in order to qualify as jurisdictional water under the "adjacent wetland" category, it must either abut another water of the United States, contribute intermittent or perennial flow to a water of the United States, or be inundated by flooding from a water of the United States in a typical year. Consequently, many floodplain and hillslope wetlands that previously were considered "jurisdictional" may be eligible for non-jurisdictional determinations beginning June 22, 2020.

Clearly, the NWPR shifts responsibility for many, many streams and wetlands to state and tribal authorities, which may result in varied, and perhaps inconsistent, regulatory or permitting requirements between states for the same type of streams or wetlands that would have been subject to a more uniform federal jurisdiction under the 2015 Clean Water Rule. Of course no revision to the scope of jurisdictional waters can escape judicial scrutiny. We can expect to see litigation challenging the NWPR in the near future, assuming cases have not already been filed by the time you read this.

How the Agencies will interpret and implement the NWPR in the field is the next big question. We may be waiting months or years for some of those questions to be addressed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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