Yesterday, President Trump announced the Navigable Waters Protection Rule, which is the next step in this administration’s goal to review and revise the definition of waters of the U.S. under the Clean Water Act. Waters of the U.S. are waterbodies, rivers, streams, and wetlands that are protected under the Section 404 of the Clean Water Act (CWA). Under Section 404, any impacts (i.e. placement or removal of fill) in waters of the U.S. requires a federal permit.
The Final Rule
The final rule narrows the definition of waters of the U.S. in comparison to currently accepted CWA and court interpretations. In the final rule, “waters of the United States” are limited to:
- The territorial seas and traditional navigable waters;
- Perennial and intermittent tributaries that contribute surface water flow to such waters;
- Certain lakes, ponds, and impoundments of jurisdictional waters; and,
- Wetlands adjacent to other jurisdictional waters.
Notably, the rule specifically excludes all ephemeral streams, which are streams that are dry most of the year and are typically only wet following rainfall.
This rule has major implications for both private and public development projects that plan to impact streams and wetlands. Ephemeral waters make up a huge percentage of the waterbodies in the U.S., particularly in the Arid West. If ephemeral waters are excluded by rule from federal oversight, then the number of federal permits required by project development will decline considerably.
At first glance, this appears to be a boon for development projects that often encounter the Clean Water Act, including oil and gas, renewable energy, commercial development, utilities, transportation, and many others. However, this rule will undoubtedly be subject to a myriad of federal lawsuits and court rulings, as we saw with the Obama-era Clean Water Rule, which tried to broaden the definition of waters of the U.S. and which many decried as government overreach. By narrowing protections to waters of the U.S. beyond the current interpretations, this rule swings in the opposite direction.
The effective date of the final rule is not yet set but is expected to be sometime in mid-March 2020.
Want to know if this rule affects you?
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