On January 23, 2020, the US Environmental Protection Agency (USEPA) and US Army for Civil Work finalized and signed the repeal of the 2015 Clean Water Rule. The new rule is now known as “The Navigable Waters Protection Rule”, streamlining the definition of Waters of the United States (WOTUS) under the Clean Water Act (CWA). This rule represents the second step of the two-step process to revise the definition of “waters of the United States”, consistent with the February 2017 Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Navigable Waters Protection Rule is anticipated to be published in the Federal Register (Docket No. EPA-HQ-OW-2018-0149) in late February, and become effective 60 days after publication.
The new rule is anticipated to streamline the WOTUS definition, but does not eliminate regulation of wetlands and waterbodies under the 1972 Clean Water Act. There will now be four categories of jurisdictional waters, and clear exclusions for waters that traditionally have not been regulated. The new rule also defines terms in the regulatory text that have never been defined before. Congress, in the Clean Water Act, explicitly directed the Agencies to protect “navigable waters.” The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them.
In summary, CWA Section 404 and 401 permits are still required if impacts to jurisdictional waters of the United States are proposed by your project. Your consultant, in coordination with the USACE, can help you determine if you have jurisdictional waters of the United States on your property. If you have additional questions, please contact Mike Hartoin, Vice President, Natural Resource Services at SCI Engineering, Inc. at Mhartoin@sciengineering.com.