It’s Not Only A Time for Seasonal Changes

The Navigable Waters Protection Rule of 2020 (NWPR) was put in place to eliminate the subjectivity associated with determining whether waters and wetlands were jurisdictional.  This final rule, which went into effect on June 22, 2020, narrowed the definition of jurisdictional waters through the creation of four categories of jurisdictional waters and 11 categories of non-jurisdictional waters.  On August 30, 2021, a District Court in Arizona vacated and remanded the Navigable Waters Protection Rule of 2020, thereby increasing the amount of wetlands and waters subject to federal regulation.  This action was the result of litigation (Pascua Yaqui Tribe vs. U.S. Environmental Protection Agency) where the plaintiffs collectively argued that the Navigable Waters Protection Rule (NWPR) violated the Clean Water Act because the rule did not extend to streams with ephemeral flow and their adjacent wetlands. The court found “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition.”

In response to this judicial order, the U.S. Environmental Protection Agency (USEPA) and the U.S. Army Corps of Engineers (USACE) have suspended implementation of the NWPR and are back to interpreting the definition of Waters of the U.S. under the pre-2015 regulatory system.  These regulations increase the potential for federal resource jurisdiction compared to the NWPR and its jurisdictional coverage.  The pre-2015 regulations dictate jurisdiction over the following waters:

• Traditional Navigable Waters (TNWs),
• Wetland adjacent to TNWs;
• Non-navigable tributaries of TNWs that are relatively permanent; and
• Wetlands that directly abut such tributaries.

In addition, other resources may be found to be jurisdictional based on a fact-specific analysis to determine whether they have a significant nexus with a TNW.

This regulatory shift applies nationwide and changes the way that wetland and water resource federal jurisdiction is determined and what resources meet the definition of a regulated Water of the U.S.  Keep in mind that numerous Clean Water Act programs include and focus on Waters of the U.S. involvement.  With Waters of the U.S. being redefined, the jurisdictional scope of the following 1972 Clean Water Act sections are also called into question:

• Section 303(c) – Water Quality Standards
• Section 303(d) – Impaired Waters and Total Maximum Daily Loads (TMDLs)
• Section 311 – Oil Spill Prevention and Preparedness Programs
• Section 401 – Certification
• Section 402 – National Pollutant Discharge Elimination System
• Section 404 – Permitting Discharges of Dredged or Fill Material

New federal jurisdictional determination requests as well as requests that had previously been submitted but had not been issued prior to August 30th will be completed under the pre-2015 rules.  Jurisdictional determinations issued by the USACE under the Navigable Waters Protection Rule of 2020 (prior to August 30) will remain valid.  Projects that involve dredging or filling of resources determined to be federally regulated under the Clean Water Act require that a federal permit be issued prior to such action taking place (Section 404). Projects still in development stages should be re-evaluated under the current federal regulations in place.  The USEPA and USACE announced on June 9, 2021, their intent to revise the Waters of the U.S. definition in response to a request from President Biden. This new rulemaking process is still being finalized, but is expected to expand resource jurisdiction from that seen under the Navigable Waters Protection Rule of 2020.  It is expected that the revised Waters of the U.S. definition will result in more resources falling under federal jurisdiction than experienced with the NWPR.

A more recent development, stemming from an October 21, 2021 decision from the U.S. District Court of the Northern District of California, has caused the USACE to temporarily pause issuance of new Individual Permits or authorizations under the 16 Nationwide Permits (NWPs) that were issued earlier in 2021. 12 existing and 4 new NWPs went into effect on March 15, 2021.

These reissued and new (*) permits include:

• NWP 12 – Oil or Natural Gas Pipeline Activities
• NWP 21 – Surface Coal Mining Activities
• NWP 29 – Residential Developments
• NWP 39 – Commercial and Institutional Developments
• NWP 40 – Agricultural Activities
• NWP 42 – Recreational Facilities
• NWP 43 – Stormwater Management Facilities
• NWP 44 – Mining Activities
• NWP 48 – Commercial Shellfish Mariculture Activities
• NWP 50 – Underground Coal Mining Activities
• NWP 51 – Land-based Renewable Energy Generation Facilities
• NWP 52 – Water-based Renewable Energy Generation Pilot Projects
• NWP 55* – Seaweed Mariculture Activities
• NWP 56* – Finfish Mariculture Activities
• NWP 57* – Electric Utility Line and Telecommunications Activities
• NWP 58* – Utility Line Activities for Water and Other Substances

This decision also called into question the status of permits that have been issued or requested that rely on a 2020 Section 401 Certification (existing state Section 401 programs were modified in 2020 on the heels of the NWPR issuance).  The USEPA was already considering future modifications related to Section 401 certification, so this most recent development will hopefully help to accelerate some of the resulting decisions.  Also keep in mind that the remaining 40 existing NWPs were set to be re-issued in March 2022; though this timeframe may also be delayed depending on how the regulatory climate continues to change.  In the case of a delay, if keeping with past precedent is any indication, projects will continue to be able to move forward with the 2017 Nationwide Permit Program versions of these 40 NWPs until the new program is released. The evolution from the old version to the new version always comes with a little hesitancy and transitional pains however; the extent of pain being contingent on the actual timing and subsequent release of each state’s Section 401 conditions, if applicable.

Though the current regulatory environment continues to be in flux, and the timing of when decisions will be reached is unknown, Barton & Loguidice’s permitting experts are available to help you digest these changes and identify your project’s current status and best path forward.