Final Waters Rule; Ephemeral Streams Not Regulated under CWA 404
by Transect Team, on Apr 21, 2020
Today, the EPA and USACE published the final Navigable Waters Protection Rule, which redefines what types of waterways are protected under Section 404 of the Clean Water Act (CWA) (waterbodies protected under CWA 404 are collectively referred to as “waters of the U.S.”).
Waters of the U.S. Redefined
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 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.
The list of waterbodies that are NOT waters of the U.S. is considerably longer, but 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 traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, 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.
Fewer Hurdles for Projects, For Now
The Navigable Waters Protection Rule is a dramatic shift from preceding interpretations of “waters of the U.S.”, which included ephemeral waters and ditches provided they met certain downstream connectivity requirements. 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 that they have fewer waters and wetlands on their projects that require avoidance, minimization, or 404 permitting. However, green groups are already prepping their lawsuits, so how long the rule will be in effect in uncertain.
Additional Uncertainty for Utility Lines and Pipelines
The rule is finalized on the heels of a sweeping ruling made by a Montana judge last week regarding the use of Nationwide Permit 12 (NWP) for utility and pipeline infrastructure. The ruling 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 a very interesting 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 impact are no longer regulated. With appeals and litigation certain 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.
As always, Transect will be monitoring the grey areas and updating our platform accordingly. Visit app.transect.com today to get a free assessment of waterbodies on your property.
The final rule is available here. The rule is effective on June 22, 2020.