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Navigating the Murky Depths of Waters of the United States Regulation

Section 404 of the Clean Water Act (CWA), concerning Waters of the U.S. (WOTUS) has been a source of gray area and interpretation for more than 30 years. The most recent ruling in 2015 was a source of contention challenged in circuit court, with some states adopting it and others choosing not to follow it.

The 2015 rule has been replaced with the Navigable Waters Protection Rule, published on April 21 and effective on June 22, 2020. This new rule defines WOTUS. However, the new rule remains in a state of uncertainty in some locations, and the impact of this new rule varies, depending on your location. As an example, on June 19, 2020 a federal court in Colorado froze implementation of the new WOTUS rule based on the fact that they felt that the state would have a case in challenging the new definition of protected waterways. Terracon’s nationwide network of environmental experts can help you determine how the new rule affects you and your future projects.

The impact of this new rule varies, and project owners and their consultants are provided with more clarity to determine what parts of a property may or may not be considered WOTUS, helping them make informed decisions on property selection and management techniques.

Helping to Define a WOTUS

The Navigable Waters Protection Rule offers four clear categories of waters:

• The territorial seas and traditional navigable waters;
• perennial and intermittent tributaries to those waters;
• certain lakes, ponds, and impoundments; and
• wetlands adjacent to jurisdictional waters.

WOTUS regulations clarifications for coastal areas might not change much. However, areas with drier climates might see a reduction in regulation. There are key elements affecting the scope of CWA jurisdiction, including removing the separate categories for jurisdictional ditches and other impoundments, defining ‘adjacent wetlands,’ defining and clarifying key terms, and clarifying the natural or unnatural features or conditions severing jurisdiction. Federal regulations can be complicated and time consuming, and the Navigable Waters Protection Rule is designed to provide clarification on permitting and mitigation expectations.

Keeping Current with the Times

The new Navigable Waters Protection Rule has been challenged in court.  Additionally, the burden of proof of jurisdiction lies with the U.S. Army Corps of Engineers.  Interpretation of the rule resulting from challenges and new guidance is anticipated to evolve with the potential for varied application of the rule across different regions of the United States. Terracon’s environmental experts understand the evolving regulatory framework and can help early in the planning process. If there are concerns about CWA issues or wetlands delineation, our desktop surveys and in-office reviews can help identify and define potential issues to determine the best course of action.

Kim Copenhaver is an environmental assessment professional with more than 25 years of experience working with wetlands, waterways and the regulations surrounding. Kim leads Terracon’s Omaha office in environmental planning services, providing guidance to a wide variety of projects throughout the Midwest and Great Plains regions.