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U.S. Army Corps of Engineers and U.S. Environmental Protection Agency Release Proposed Waters of the United States Rule
On November 18, 2021, the U.S. Army Corps of Engineers (USACE) and the U.S. Environmental Protection Agency (EPA) issued a proposed rule to define waters of the United States (2021 WOTUS Rule).
Senior Natural Resources Team Lead
Russell Waldron
Russell has more than 25 years of experience in environmental regulations compliance for federal, state, and local laws with an understanding of the nuances of FERC regulations and NEPA, CWA, and ESA compliance.
Principal Natural Resources Team Lead
Nate Jones
Nathan Jones is a Principal Environmental Consultant who oversees and manages renewable energy development projects. His extensive experience includes supporting, permitting, and managing projects on federal, state, and private lands. Nathan is well-versed in regulatory frameworks such as FAST-41 (Title 41 of the Fixing America’s Surface Transportation (FAST) Act), NEPA, ESA, CWA, and NHPA, along with state and local regulations. Additionally, he offers technical assistance to other project managers in the renewable energy sector.
Strategic Growth Director
Becky Weissman
Weissman is a Senior Project Manager at SWCA with over 15 years in the environmental consulting industry. She is experienced in all phases of the environmental permitting process, including leading wetland and natural resource field assessments in both coastal and freshwater communities, preparing federal and state environmental permit applications, and coordinating with regulatory agencies. Ms. Weissman has a wide-breadth of project experience, including energy (wind, electric transmission, and natural gas), transportation, and retail and commercial development projects. Ms. Weissman’s technical background is in wetland science, and she is both a Professional Wetland Scientist (PWS) and New Hampshire Certified Wetland Scientist (CWS). She has conducted numerous wetland delineations and vernal pool assessments throughout the northeastern United States, and holds a Certificate in Native Plant Studies from the New England Wildflower Society. She is a vice-chair of the Holliston Conservation Commission and was previously a member of the Wellesley Wetlands Protection Committee.
Over the past 8 years, Ms. Weissman’s primary focus has been the management of natural gas pipeline projects regulated by the Federal Energy Regulatory Commission. Ms. Weissman has coordinated and managed numerous environmental permit applications submitted to FERC, the U.S. Army Corps of Engineers, and various state environmental agencies throughout the United States.
Written By
Russell Waldron
Senior Natural Resources Team Lead
Nate Jones
Principal Natural Resources Team Lead
Becky Weissman
Strategic Growth Director
Posted
November 22, 2021
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On November 18, 2021, the U.S. Army Corps of Engineers (USACE) and the U.S. Environmental Protection Agency (EPA) issued a proposed rule to define waters of the United States (2021 WOTUS Rule). The 2021 WOTUS Rule is similar in structure and approach as the pre-2015 regulations, which are described in the 2008 USACE and EPA memorandum titled Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States. Compared to the 2020 Navigable Waters Protection Rule (NWPR), the 2021 WOTUS Rule would result in potentially substantial differences in jurisdictional status including, but not limited to, the following.
- Under the 2021 WOTUS Rule, ephemeral waters would be jurisdictional if they have a significant effect on the chemical, physical, or biological integrity of a navigable water, interstate water, or territorial sea.
- The 2020 NWPR identifies all ephemeral waters as non-jurisdictional.
- Under the 2021 WOTUS Rule, the term “adjacency” is defined to allow greater professional judgement regarding when a wetland is considered “adjacent” to a water of the United States.
- The 2020 NWPR defines “adjacency” with specific hydraulic and hydrologic criteria, resulting in a reduction in wetlands that were adjacent to waters of the United States.
- Under the 2021 WOTUS Rule, waste treatment systems and prior converted cropland (PCC) are excluded from the scope of waters of the United States.
- The 2020 NWPR includes 12 categories of excluded waters, including waste treatment systems and PCC, but also specific exclusions for artificial waterbodies constructed in dryland, stormwater facilities, and most ditches, to name a few.
Additionally, the 2021 WOTUS Rule would depart from some of the practices under the 2008 Agency Guidance, including:
- Revising a “significant nexus” to consist of a physical, chemical, or biological effect on any navigable water, interstate water, or territorial sea.
- The 2008 Agency Guidance only allows for a “significant nexus” if the subject wetland or non-wetland water has a physical, chemical, and biological effect on a downstream traditional navigable water.
- Expanding the scope of which waters are eligible for a “significant nexus” based determinations of jurisdiction to include non-wetland waters.
- The 2008 Agency Guidance does not have a means for asserting “significant nexus” based on jurisdiction over non-wetland waters which are not tributaries to other waters of the United States (e.g., floodplain ponds that lack a surface connection to a receiving water of the United States).
The 2021 WOTUS Rule will be subject to public and interagency comment prior to finalization and implementation. SWCA recommends reviewing the proposed rule to identify potential concerns or benefits, attending virtual Public Hearings currently scheduled for January 12, 13, and 18, 2022, and submitting comments via Regulations.gov during future comment periods.
For updates or additional information, please reach out to your primary SWCA contact or one of our regional wetland leads:
Bonnie Rogers | West
