On April 21, 2020, the Environmental Protection Agency published the Navigable Waters Protection Rule, a new Waters of the United States Rule in the Federal Register. This rule will take effect on June 22, 2020, and any new wetlands or stream delineations or permit requests will be subject to it. The rule redefines what qualifies as a jurisdictional “waters of the United States” as regulated by the EPA and U.S. Army Corps of Engineers.
The rule was created to streamline the definition of jurisdictional waters that includes four simple categories, provides clear exclusions for many features outside the scope of the federal Clean Water Act and defines terms in a regulatory text that has not been previously codified. The final rule significantly alters previous rules and removes the jurisdictional status of many wetlands and ephemeral and intermittent streams. Proposed by the current administration, the rule’s effect will relax restrictions on commercial, industrial and agricultural development at the federal level and put more onus on individual states to oversee federally unregulated waters.
The rule’s most significant changes are to the definition of jurisdictional wetlands. Under the new rule, only those wetlands that are immediately adjacent to other jurisdictional waters are federally jurisdictional. “Adjacent wetlands” to jurisdictional waters are characterized as directly abutting, inundated by flooding, physically separated by a natural feature like a berm or bank, or have a direct physical connection if separated by a non-natural feature.
This new definition removes historical considerations of connection via groundwater and does not allow for protection of many unique water features that will now be considered “isolated.” The rule also only allows adjacency when the requirement is met in a “typical year,” defined as an event that is expected to occur annually when looking at a 30-year average of data. Thus, many wetlands that would qualify as jurisdictional because of inundation from flooding of an adjacent stream may not qualify if the flood event is not expected annually.
The rule was criticized by the EPA’s Science Advisory Board as lacking scientific justification and as potentially introducing new risks to human and environmental health. Within the first week of publication, 17 states and multiple other environmental groups filed suit against the rule in multiple federal district courts.
Learn more about Tioga’s work in wetlands and natural resources. If you’re unsure about a water feature that may be jurisdictional on your property, contact us today.