On June 9, 2021, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) announced their intent to undertake a rulemaking to revise the definition of waters of the U.S. (WOTUS).
The agencies assert that the current definition, as provided in the Navigable Waters Protection Rule (NWPR), is too narrow and is resulting in the unregulated destruction of waterbodies and has reduced clean water protections. Concurrently, the U.S. Department of Justice is requesting the courts to set aside challenges to the current WOTUS definition while it works through a new rulemaking process.
SWCA recently recorded a webinar addressing project risks and considerations relative to this update, which you can view below or by visiting this link.
A possible short- and long term outcome of this development is a reversion to the 2008 Post-Rapanos Guidance. Under this scenario, expected changes to jurisdiction, relative to the NWPR, may include:
- Many ephemeral waters will be WOTUS if they have a defined connection to downstream waters.
- Non-adjacent wetlands would be WOTUS if the USACE identifies a significant nexus to a downstream Traditional Navigable Water.
- Many ditches will be WOTUS if they have seasonal flow and a connection to downstream waters.
There are a number of scenarios that present risk and/or uncertainty to planned projects relative to a change in the WOTUS definition. A few examples of the numerous scenarios include:
- Projects which have submitted requests for Approved Jurisdictional Determinations (AJDs) to the USACE and an agency response is pending.
- Will USACE continue to process AJDs or will there be a delay pending a new definition?
- Projects that are designed to avoid impacts to WOTUS based on the NWPR, but would impact significant WOTUS under the 2008 Post-Rapanos Guidance.
- Design changes may be required to avoid problematic permitting requirements.
- Projects that have received Clean Water Act Section 404 authorization from the USACE, but which undergo design changes resulting in impacts to features that are jurisdictional under a future WOTUS definition.
- Will there be situations where two segments of the same water have different jurisdictional status?
SWCA will continue to monitor this development and provide updates when new information is available. Until otherwise indicated, SWCA expects that EPA and USACE will continue to recognize issued Approved Jurisdictional Determinations until the date of their expiration.