Final Waters Rule: Ephemeral Streams Not Regulated Under CWA 404

Over the river and through the woods, developing without an NWP, we go.

Navigable Waters Rule Changes CWA Jurisdiction

Today, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) published the final Navigable Waters Protection Rule, which redefines what types of waterways receive protection under Section 404 of the Clean Water Act (CWA). This ruling redefines requirements for developers and will likely impact state regulations as local governments try to recover waters valuable to their state.

What are Waters of the United States

The Waters of the United States (WOTUS) are considered under federal jurisdiction and given federal protection under the Clean Water Act (CWA).

Final Rule: Waters of the United States Definition

The Navigable Waters Protection Rule will leave fewer waters under federal jurisdiction. Transect published a summary of the draft rule earlier this year, and the final rule reads the same. Under the final rule, waters of the U.S. include:

• The territorial seas and traditional navigable water

• Perennial and intermittent tributaries that contribute surface water flow to such waters

• Certain lakes, ponds, and impoundments of jurisdictional waters

• An adjacent wetland to other jurisdictional waters.

Final Rule: Definition of Non-Jurisdictional Waters

Many waters once protected under the Clean Water Act are now considered non-jurisdictional under the NWPR. The list of water bodies that are NOT waters of the U.S. is considerably longer than those protected. Some of the most notable waterbody types include:

• Ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pool;

• Ditches that are not considered traditional navigable water, tributaries, or that are not constructed in an adjacent wetland, subject to certain limitations; and,

• Artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters.

Clean Water Act Section 404 Permit Under the Navigable Waters Protection Rule

What is a Section 404 Permit?

This permit regulates discharge in water sources deemed WOTUS to maintain water quality standards.

Is a Section 404 Permit Required Under the Navigable Waters Protection Rule?

According to Section 404, any impact (i.e., placement or removal of fill) in waters of the U.S. requires a federal permit. Under this new rule, project proponents will find fewer waters and wetlands on their projects that require avoidance, minimization, or 404 permitting.  However, green groups are already prepping their lawsuits, so it is uncertain how long the rule will be in effect.

Prior WOTUS Protections

This change in the defined WOTUS is just the most recent redefining of these waters. The vague definition provided for WOTUS within the CWA has resulted in the inconsistency of clean water protection across administrations.

The Navigable Waters Protection Rule is a dramatic shift from preceding interpretations of “Waters of the U.S.,” such as the Clean Water Rule, which included federal protection for ephemeral waters and ditches (provided they met specific downstream connectivity requirements.)  Though critiques of these prior definitions surrounded them not being inclusive enough, the implementation of the NWPR further scaled back protections for waters. The lack of protection for features like ephemeral streams is likely to stir pushback from environmental groups who speak about the value of these waters.

Ephemeral Streams

What is an Ephemeral Stream?

An ephemeral stream is a water feature that only flows in response to precipitation. This waterbody can be present but unnoticed on a project site.

Why are Ephemeral Streams Important?

Ephemeral streams flow into valuable downstream waters and maintain water quality by retaining dangerous pollutants or overflow. Before the NWPR, these waters were considered jurisdictional, given they had some chemical, physical, or biological connection to downstream waters protected by the CWA.

Ephemeral Wetlands

Like a temporary stream, an ephemeral wetland is a region that briefly holds water. This waterbody typically forms after rain or during spring and early summer. These water sources serve as a habitat for many species.

The lack of protection under the NWPR for temporary waters like those above will likely impact arid states, such as Arizona and New Mexico. These states will probably see nearly a 25% reduction in protection for their state waters.

Nationwide Permit 12 Uncertainty for Utility Lines and Pipelines

The finalization of the ruling comes on the heels of sweeping legislation made by a Montana judge last week regarding using Nationwide Permit 12 (NWP) for utility and pipeline infrastructure. The order vacated NWP 12 and enjoined the USACE from using NWP 12 to authorize impacts to waters of the U.S., citing that the USACE did not fully consider impacts to federally protected species in its issuance of NWP 12. At this time, the ruling appears to apply nationwide.

So, utility and pipeline developers find themselves in an exciting position where their primary 404 permit coverage option has been revoked (NWP 12), but many of the waters of the U.S. that their projects affect are no longer regulated. With appeals and litigation inevitable for both the Navigable Waters Protection Rule and the NWP 12 ruling, utility and pipeline developers will need to keep a close eye on the changing regulatory environment to ensure compliance under the CWA.

UPDATE: NWPR Rollback Protects Ephemeral Streams

Following the NWPR criticism, the Biden Administration returned to a pre-2015 ruling for the defined WOTUS as a Final Rule to concretely define the waters is established. The Pre-2015 legislation predates the protections of the Clean Water Rule and the NWPR. Under this ruling, ephemeral streams are under CWA jurisdiction. The pre-2015 standards require a Section 404 permit when interacting with protected waters.

The current pre-2015 interpretation defines jurisdictional waters of the U.S. as:

• All waters currently used, or were used in the past, or could be susceptible to use in interstate or foreign commerce, including traditional navigable waters, which are waterbodies subject to the tide’s ebb and flow

• Interstate waters, regardless of navigability, including interstate wetlands 

• Other waters: The use, degradation, or destruction of other waters such as intrastate lakes, rivers, streams (including intermittent streams), which could affect interstate or foreign commerce, including any such waters 

• Any tributary that flows into navigable water. Water features, such as ephemeral streams, can qualify for federal protection if they have a “significant nexus” 

• The territorial sea

• Wetlands adjacent to other waters that contribute to surface water flow (other than waters that are themselves wetlands) 

• Waste treatment systems designed to meet the requirements of CWA are not waters of the United States

Confusion over the defined WOTUS has led to a public and legislative push for a concrete definition. Public comment for determining WOTUS began in 2021. A final ruling is expected later in 2022. This ruling aims to establish clarity and consistency across future presidential administrations to protect waters better. Additionally, there will be a "second rule that builds on that regulatory foundation" due to these new regulatory efforts.

A large amount of criticism for the new rule proposed by the Trump administration was the lack of protection for ephemeral streams and ephemeral wetlands. We can likely expect a more inclusive ruling from these redefining efforts. Permitting and mitigation requirements are likely to change with the new WOTUS definition. These changes may have a significant impact on developers and project timelines.