New WOTUS Definition Published — Challenges Expected

Environmental Alert

(by Lisa Bruderly)

Yesterday, the U. S. Environmental Protection Agency (EPA) and the U. S. Army Corps of Engineers (Corps) fulfilled the Trump administration’s promise to repeal and replace the Obama administration’s Clean Water Rule (CWR) by publishing the final Navigable Waters Protection Rule (NWPR) in the Federal Register (85 Fed. Reg. 22250). The NWPR (yet again) redefines the scope of waters that are regulated under the Clean Water Act (CWA) by revising the definition of “waters of the United States” (WOTUS) in 12 federal regulations (see January 31, 2020 Alert for details and discussion of anticipated effect of the NWPR).

As expected, the NWPR’s WOTUS definition is much narrower and will federally regulate fewer waters than the CWR. The Rule also clarifies the scope of WOTUS in greater detail than the pre-2015 definition, which is currently in effect. The Rule consolidates jurisdictional waters into four categories: (1) territorial seas and navigable-in-fact waters; (2) tributaries; (3) lakes, ponds and impoundments of jurisdictional waters; and (4) adjacent wetlands. It includes 16 definitions and 12 exclusions, as compared to the five definitions and two exclusions in the pre-2015 definition, including, for the first time, definitions to clarify the prior converted cropland and waste treatment system exclusions. The Rule categorically excludes, among other things, ephemeral streams and ditches without perennial or intermittent flow.  In addition, missing from the NWPR is any reference to the significant nexus test.

Practical Impact of the NWPR will be State-Specific

The practical impact of the Rule for industry, developers, agriculture and others will vary from state to state. The NWPR’s effect is likely less in states with very inclusive definitions of state-regulated waters (e.g., Pennsylvania) than in states with narrower definitions of the same. For example, in Pennsylvania, state permitting will still be required for proposed impacts to state-regulated streams and wetlands, even though federal permitting may not be required. For states whose definitions of state-regulated waters are the same or less inclusive than the NWPR, the Rule is expected to be a more significant consideration for project permitting and federal spill prevention and response.

Controversy Continues and Challenges are Certain

Effective as of June 22, 2020, the NWPR will almost certainly be challenged in federal district courts by NGOs, certain states and other interested parties on procedural and substantive grounds. These challenges could result in the courts staying the Rule in some, or all, states while the lawsuits are litigated, potentially creating a patchwork where the pre-2015 definition remains in effect in select states or nationwide.

Babst Calland continues to analyze the practical effects of the new definition of WOTUS (see numerous Environmental Alerts at www.babstcalland.com) and is able to assist you in evaluating how the NWPR may affect your operations and/or plans for development. If you have questions about the NWPR or water-related matters in general, please contact
Lisa M. Bruderly at (412) 394-6495 or lbruderly@babstcalland.com.

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