On June 9, 2021, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) announced their intent to revise the definition of Waters of the United States (WOTUS) to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The EPA issued a declaration requesting remand of the 2020 Navigable Waters Protection Rule (NWPR), which defines which waterbodies should be considered WOTUS under the federal Clean Water Act, thereby triggering regulation.
“We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities,” EPA Administrator Michael S. Regan said in a statement. Click here to read the full statement from the EPA.
This represents the latest chapter in the history of the Clean Water Act, which has seen the limits of jurisdiction modified by multiple administrations and ruled upon by the Supreme Court. The Trump administration’s NWPR was a departure from prior iterations of the rule, most recently the broader Obama-era rule. In effect, it reduced the number and types of streams and wetlands regulated by the Clean Water Act, most notably the removal of ephemeral streams from regulation. The lack of protections is particularly significant in arid states such as New Mexico and Arizona, where nearly every one of more than 1,500 streams assessed has been found to be non-jurisdictional.
It is uncertain how long it will take to codify the new regulations. Legal challenges associated with a “repeal and replace,” similar to the 2015 repeal-and-replace process, are anticipated and may delay the process. There also is uncertainty surrounding how the EPA and USACE will handle currently approved jurisdictional determinations if the rule is changed. It’s important to keep this in mind if you are in the process of a permit application or permitting process at this time.
We are closely following these policy changes and developments and will provide updates as they become available. For more information about these changes and for assistance with navigating the regulatory marshes, contact our Corporate Ecological Sciences Practice Lead, Ray Ewing, at 412.249.2363 or via email at rewing@cecinc.com.
About Our Ecological Sciences Group
Our ecological sciences practice solves the wide range of ecological issues you may confront during your project. With extensive experience working with regulatory agencies, our multi-disciplinary team includes terrestrial and aquatic ecologists, wetland scientists, threatened and endangered species experts, and agency-approved surveyors of federally and state-listed plants and animals. We determine the presence or absence of protected species, offer measures to provide mitigation solutions, work with regulators to resolve conflicts, and recommend a permitting strategy. We’re experienced with natural channel stream design, watershed-based restoration, and on-site mitigation projects.
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