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Potential changes to the implementation of the Clean Water Act (CWA) include the definition of waters of the U.S. (WOTUS) and the CWA Section 404 Nationwide Permits (NWPs), which are used to permit most projects that discharge fill into WOTUS

 

Definition of Waters of the U.S./Clean water act Jurisdiction

The existing definition for WOTUS is provided by the Navigable Waters Protection Rule (NWPR), which was promulgated during former President Trump’s administration and implemented for use nationwide in June 2020 (except for Colorado where the rule was stayed pending the outcome of ongoing litigation). The NWPR provides a narrower interpretation of WOTUS compared to the previous regulations. The NWPR is expected to be targeted by President Biden’s administration and one of several avenues could be used to revert the definition of WOTUS to previous regulations (likely either the 2015 Clean Water Rule or the 1986 Code of Federal Regulations definition as clarified by the 2008 post-Rapanos guidance):

  • Litigation—The NWPR is currently challenged in multiple court cases. While these challenges were defended by the U.S. Department of Justice (USDOJ) under former President Trump, there are indications of shifting legal strategy under President Biden, such as the request for a “pause” in at least one case to allow USDOJ to reevaluate its position.

    For more information, please visit: https://www.epa.gov/nwpr/definition-waters-united-states-rule-status-and-litigation-update
     
  • Regulatory—The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (USACE) could undertake a rescind-and-replace process, similar to the process that resulted in the rescission of the 2015 Clean Water Rule and promulgation of the NWPR. This would require publishing a new rule, including a public comment period, and would likely be a multi-year process.

 

Clean WAter act Section 404 Nationwide permits

Revisions to the NWP program were published in the Federal Register on January 13, 2021, and were to become effective on March 21, 2021. However, on January 20, 2021, the Biden administration issued a regulatory freeze for new and pending rules, including rules published in the Federal Register but not yet implemented, to provide the new administration time for review. If implemented as published, the final rule would reissue 12 existing NWPs, introduce four new NWPs, and reissue the associated NWP general conditions and definitions with some modifications. The remaining 40 existing NWPs published in 2017 have not been reissued and remain in effect until March 18, 2022.

The USACE provided a fact sheet for the new NWPs and the most notable changes that may have impacts on future projects include the following:

  • Limiting NWP 12 for use only with oil and gas pipelines.
     
  • Creation of two new NWPs for non-oil and gas linear utility activities:
    • NWP 57 for electrical and communication utility projects; and
    • NWP 58 for water and other substance utility line activities.
       
  • Removal of the 300-foot stream bed loss threshold common to many NWPs.
     
  • Under General Condition 23, introduction of a compensatory mitigation requirement for all losses of stream bed in excess of 0.03 acre where the project otherwise requires submittal of a pre-construction notification.

 

SWCA Can Help

SWCA will continue to monitor these developments and provide periodic updates. If you have any questions about the potential changes to CWA jurisdiction or the Section 404 NWP program, please reach out to your primary SWCA contact or one of the following experts:

  • Victoria [dot] Casteel [at] swca [dot] com (Vicki Casteel)
  • jpowell [at] swca [dot] com (Jake Powell)
  • rwaldron [at] swca [dot] com (Russell Waldron)
  • Noah [dot] Greenberg [at] swca [dot] com (Noah Greenberg)