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On April 21, less than a week after a federal district court in Montana vacated Nationwide Permit (“NWP”) 12, EPA and the U.S. Army Corps of Engineers (“Corps”) published the Navigable Waters Protection Rule (“NWPR”). The NWPR establishes a new definition for the term “waters of the U.S.” (“WOTUS”) under the Clean Water Act (“CWA”). The new definition is significantly narrower than the 2015 Clean Water Rule as well as most recent Supreme Court opinions interpreting the term. The NWPR will become effective 60 days after publication, on June 22. When it does, it may provide some measure of relief to developers of projects affected by the loss of NWP 12, eliminating the need to obtain a CWA permit for dredging or fill activities in many waters that have long been considered potentially jurisdictional.
Brief Overview of the NWPR
A primary purpose of the NWPR is to simplify the determination and increase the predictability of what waters qualify as WOTUS and are therefore subject to Corps jurisdiction under the CWA. To that end, the NWPR establishes four categories of WOTUS:
- Territorial seas and traditional navigable waters (“TNW”)
- Tributaries of TNW
- Lakes and ponds, and impoundments of jurisdictional waters; and
- Adjacent wetlands
TNW are defined as waters which are currently used, have in the past been used, or may be susceptible to use in interstate commerce, including waters subject to the ebb and flow of the tide. This definition is substantively similar to the previous definition. Likewise, the category of lakes, ponds and impoundments of jurisdictional waters is fairly similar to previous rules. The most significant changes contained in the NWPR are in the way tributaries and adjacent wetlands are defined, and what is no longer included within WOTUS.
The NWPR defines “tributary” as a naturally occurring surface water channel that contributes surface water flow to a TNW in a “typical year.” While this can include intermittent streams that flow only seasonally (such as due to snowmelt or elevated groundwater tables), in a marked departure from previous rules and practice, the NWPR explicitly excludes from jurisdiction all ephemeral streams (i.e., surface water that flows or pools only in direct response to precipitation events).
The definition of “adjacent” wetlands has also been significantly narrowed from previous rules. The NWPR defines “adjacent” wetlands as those wetlands that:
- abut (i.e., physically touch at least one point or side of) another jurisdictional water;
- are inundated by flooding from another jurisdictional water in a typical year;
- are physically separated from another jurisdictional water only by a natural berm, bank, dune or similar natural feature; or
- are physically separated from another jurisdictional water only by an artificial dike, barrier or similar artificial structure so long as that structure allows for a direct hydrologic surface connection in a typical year, through a culvert, flood or tide gate, pump, or similar artificial feature.
Notably, under the NWPR, the “significant nexus” test that prevailed in the years following the Supreme Court’s decision in Rapanos no longer applies. The only hydrologic connection that can render a tributary or wetland jurisdictional under the NWPR is a direct surface connection that contributes flow in a “typical year,” which is defined based on a rolling 30-year period. Additionally, artificial ditches are no longer an independent category of WOTUS. Ditches are jurisdictional only where they actually satisfy the requirements for being classified as a tributary or an adjacent wetland.
The NWPR contains a number of additional specific exclusions and definitions, but as the above overview makes clear, it is designed to be much simpler and less subjective and therefore more predictable than previous rules and court decisions defining or interpreting WOTUS.
Immediate Implications of the NWPR
The NWPR will go into effect on June 22, barring the issuance of a stay or other injunctive relief from litigation challenging the rule. Numerous environmental organizations have already announced their intention to sue EPA and the Corps over the NWPR, and that litigation will warrant close attention.
Assuming the rule goes into effect as scheduled, developers and those conducting construction activities in potentially jurisdictional waters or wetlands should benefit greatly from the new definition. In addition to significantly narrowing the scope and extent of waters that are subject to federal jurisdiction under the CWA, the NWPR should make it much easier for the regulated community to determine whether its activities may affect jurisdictional waters. While the Corps remains the only entity that can make a legally reliable jurisdictional determination (“JD”), the clarity and certainty provided by the rule may reduce the number of projects for which there is a need to seek a JD at all. That could enable many projects to proceed without incurring the lengthy delays associated with the JD process, or expedite the process for those projects that do require a permit.
Finally, while the NWPR does not make any change to the Corps’ nationwide permit program, it could be particularly important in blunting the impact of last week’s Northern Plains Resource Council decision that vacated NWP 12 and remanded it to the Corps for compliance with the Endangered Species Act and other applicable laws. Companies developing and constructing utility lines that had been relying upon NWP 12 and are now faced with the possibility of an extended delay to obtain individual authorization would be wise to re-evaluate the potential WOTUS on their project site. They might find that the crossings that previously required a permit no longer qualify as WOTUS under the NWPR. Alternatively, it may now be feasible to redesign or reconfigure the project to avoid the reduced scope of waters that still qualify as WOTUS. We encourage you to contact us for guidance on these strategies or further information regarding the NWPR or the NWP 12 vacatur.