Clean Water Act Update: The Navigable Waters Protection Rule of 2020 Has Been Vacated
Tom Furgason and Morgan Starr, Environmental
October 12, 2021
Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters of the United States (WOTUS), which are under the jurisdiction of the U.S. Army Corps of Engineers (USACE). Any project placing fill or dredged materials into WOTUS requires a USACE permit, typically an individual or nationwide permit. There has been significant litigation during the last 35 years regarding WOTUS, and by extension, limits of the USACE’s permitting authority.
The most recent ruling regarding the Navigable Waters Protection Rule of 2020 (NWPR), which occurred on August 30, 2021, may affect projects being developed and even those in the developmental stages.
NWPR Ruling Remanded
The NWPR sought to clarify WOTUS that are under the jurisdiction of the USACE under the CWA. In practice, this reduced the USACE’s jurisdiction over isolated wetlands, ditches, and other waterbodies. For example, it is estimated that WOTUS in the State of Arizona were reduced by 97 percent under the NWPR.
Fast forward to August 2021; a district court in Arizona vacated and remanded the NWPR resulting from litigation by six Indian Nations (Pasqua Yaqui Tribe v. EPA, Case No. 4:20-cv-00266). The plaintiffs (Pascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake Superior Chippewa, Menominee Indian Tribe of Wisconsin, Tohono O’odham Nation, and Bad River Band of Lake Superior Chippewa) argued in their suit that “…the NWPR is internally inconsistent, that the [defendants] failed to adequately explain their change in position or analyze the environmental justice implications of the NWPR, and that the waste treatment exclusion of the NWPR is arbitrary and capricious.” The plaintiffs also argued that the NWPR was a violation of the CWA because the purpose of that act is to protect the chemical, physical, and biological integrity of all waters; the exclusion of ephemeral streams and adjacent wetlands had resulted in the degradation of Arizona’s waters.
The court found “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition.” The ruling applies nationwide (based on current interpretation).
Implications for Projects
As a result of the August 2021 ruling, all permitting under the NWPR has been halted. Projects will be subject to permitting guidance established before 2015 resulting from the U.S. Supreme Court cases U.S. vs Riverside Bayview Homes, Solid Waste Agency of Northern Cook County vs USACE, Rapanos vs U.S., and Carabell vs U.S.
Several USACE districts have indicated that Approved Jurisdictional Determinations (AJDs) and Section 404 permits that were accepted prior to the August 2021 ruling will remain valid; however, Olsson recommends this be confirmed with the USACE district for each project prior to work proceeding on previously permitted projects.
Practically, this rule change means that project impacts to ephemeral streams and wetlands within the watershed boundaries of ephemeral streams may now be considered WOTUS in certain situations, and they may require permitting for impacts through Section 404 of the CWA. Projects currently in development that do not have an AJD or a Section 404 permit should be revisited to assess compliance with the current changes to the rule. This includes projects that may have already been deemed exempt from certain Section 404 permitting requirements between April 2020 and August 2021.
Helping Clients with Regulatory Guidance
Though Olsson cannot predict the outcome of the final WOTUS ruling (date pending) and there is still much uncertainty regarding this rulemaking, Olsson’s Environmental team can help assess where projects fall under the current regulatory guidance. Pending jurisdictional determinations (JDs) and permits will be approved at the discretion of the USACE. Further, ongoing litigation surrounding the rule may affect what is or is not a WOTUS on a state-by-state basis; it is important to communicate with the proper regulatory agencies (typically the local USACE district and the state Department of Environmental Quality) to determine what regulations apply in the absence of a final federal ruling. Early conversations can help Olsson guide you through current future changes while still meeting project goals and timelines.
Olsson’s technical staff assists clients in developing projects that require permitting under Section 404 of the CWA. Please reach out to a member of our Environmental team to discuss how the local USACE district(s) for your projects is responding to the recent ruling.
Tom Furgason is the Environmental practice leader at Olsson and is based in Denver. Morgan Starr is an assistant scientist on the firm’s Oklahoma Environmental and Water team and is based in Oklahoma City.