In April 2020, the USACE and EPA published a final rule in the Federal Register entitled “Navigable Waters Protection Rule” (NWPR) that refined the definition of Waters of the United States (WOTUS) and jurisdictional wetlands under the Clean Water Act (CWA). When the CWA was passed in the early 1970s with the objective to “restore and maintain the chemical, physical, and biological integrity” of the nation’s waters, Congress explained how to define those waters. Recognizing WOTUS has been left to executive branch agencies, in particular the EPA and USACE, and to federal courts. As a result, the definition of WOTUS has undergone frequent changes in the nearly 50-year history of the CWA. The latest change took effect this week, effective on June 22, 2020.
The new NWPR defines four categories of federally regulated waters and wetlands, and 12 categories of exclusions that are not subject to regulation under the CWA. The four categories of WOTUS and wetlands are:
- The territorial seas and traditional navigable waters.
- Perennial and intermittent tributaries to those waters.
- Certain lakes, ponds, and impoundments.
- Wetlands adjacent to jurisdictional waters.
The excluded water bodies and features that are not regulated under the CWA are:
- Waterbodies that are not included in the four categories of “waters of the United States” listed above.
- Groundwater, including groundwater drained through subsurface drainage systems, such as drains in agricultural lands.
- Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools.
- Diffuse stormwater run-off and directional sheet flow over upland.
- Many farm and roadside ditches.
- Prior converted cropland.
- Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease.
- 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.
- 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.
- Stormwater control features excavated or constructed in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off.
- Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention and infiltration basins and ponds, that are constructed in upland or in non-jurisdictional waters.
- Waste treatment systems, which have been excluded from the definition of “Waters of the United States” since 1979, will continue to be excluded under the final rule. Waste treatment systems are defined for the first time in this rule.
The most significant change in the new rule is the exclusion of ephemeral streams, and by extension, wetlands that are only connected to downstream waters through ephemeral streams. Historically, under regulations enacting the Clean Water Act, any stream that had a definable bed, bank, and ordinary high water mark (OHWM), was considered a WOTUS. Now, the NWPR separates ephemeral streams from intermittent and perennial streams. Ephemeral streams are waterbodies that flow only in response to precipitation or snow melt. Their flow is not continuous, and during portions of a growing season, there may be no flowing water in the channel. An intermittent stream also flows discontinuously, but in contrast to ephemeral streams, the flow of an intermittent stream includes precipitation and snowmelt, as well as contributions from groundwater. The channel of an intermittent streams intercepts the subsurface water table, at least part of the year, and that water table contributes to the surface flow of the stream. Perennial streams flow continuously year-round and receive inputs from precipitation, snowmelt, groundwater, and tributary streams.
The NWPR makes determination of WOTUS more complicated. Under previous rules, if a stream had a definable bed and bank, it was a regulated waterbody, regardless if it had flowing water at any given time. Under the new rule, a flowing stream could be an ephemeral stream carrying water in response to precipitation, or it could be an intermittent or perennial stream that is supported by groundwater. A dry stream bed could be an ephemeral stream, or it could be an intermittent stream for which the water table is temporarily too low to provide discharge into the stream bed.
How does the new rule affect previously issued Approved Jurisdictional Determinations?
Approved Jurisdictional Determinations (or AJDs) that were issued under the 2015 Clean Water Act Rule will remain valid for five years after the issuance date. Project proposers and landowners can request a revised AJD under the new rule, if they desire. A revised AJD may find some isolated wetlands to be non-jurisdictional under the new rule, however local and State regulations should also be considered to determine if a revised AJD request would be beneficial.
Local & State Regulations
Several states and local government units impose additional protections on wetlands, streams, and other aquatic features that are separate from federal regulations. These regulations vary by location and often overlap with local and state regulations but require different permitting and approval process and timelines. Early planning and consideration of these aquatic resources should be discussed with an environmental professional to determine the best approach in achieving your project goals while adhering to all applicable water resource regulations.
Braun Intertec has experienced scientists that perform wetland delineations, can distinguish between regulated and non-regulated wetlands and streams, and can assist clients in working with regulatory agencies to meet permitting requirements and project timelines.
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If you have any questions about the new NWPR or local regulations, please give us a call or click the link below to fill out our Contact Us form.