The Repeal of the Waters of the United States Regulation

Building on a wetland comes with a host of environmental compliance concerns. Wetlands are valuable habitats, natural water filters, and helpful buffers during major storms. For these reasons, the Environmental Protection Agency (EPA) and the Department of the Army have stringent rules to protect wetlands. In late 2019, the two agencies repealed the 2015 Waters of the United States Regulation, replacing it with a new rule: the Navigable Waters Protection Rule.

The Repeal of the Waters of the United States Regulation

Why Was the Waters of the United States Regulation Repealed?

The EPA and the Department of the Army repealed the 2015 Rule for four primary reasons:

1. The agencies concluded that the 2015 rule conflicted with the scope of the agencies’ authority under the Clean Water Act (CWA), which regulates the quality of surface waters and any pollutant discharges.
2. The agencies concluded that the 2015 rule failed to adequately consider the policy of the Congress as noted in one CWA section: to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.”
3. The agencies wanted to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority.
4. The 2015 rule’s distance-based limitations suffered from “certain procedural errors and a lack of adequate record support.”

Understanding the New Regulation: the Navigable Waters Protection Rule

When the 2015 rule was repealed, the agencies replaced it with a new rule: the Navigable Waters Protection Rule to define “Waters of the United States.” The Navigable Waters Protection Rule now regulates these waters, as well as their core tributary systems, and establishes the agencies as the go-to federal regulatory authorities under the Clean Water Act. In addition, it incorporates a few key changes:

• Streamlines the definition of navigable waters to include four simple categories of jurisdictional waters
• Provides clearer exclusions for traditionally unregulated water features
• Defines and clarifies several terms in the regulatory text that have never been defined before, making the rule clearer for developers and compliance officials

What This Means for Developers

Ideally, the Navigable Waters Protection Rule will make compliance easier for developers by providing clearer definitions for the affected waters. The final rule regulates the following clear categories of waters:

• United States territorial seas and traditional navigable waters
• Perennial and intermittent tributaries to those waters
• Certain lakes, ponds, and impoundments
• Wetlands adjacent to jurisdictional waters

If you are a developer and you suspect you have a wetland on your project site, this rule applies to you. Start by determining if you have a wetland on your project site. From there, you will need to determine if that wetland is jurisdictional according to the Navigable Waters Protection Rule, which means the government would have regulatory authority over the site. Typically, this means that the wetland on your property must have “relatively permanent” connectivity to navigable waters of the United States. Keep in mind that the wetland does not have to connect to the waters directly; it can be adjacent to a small flowing creek to qualify.

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The repeal of the Waters of the United States Regulation may seem confusing, but the updated rule is actually a bit clearer for developers. If you think your project site may fall under the Navigable Waters Protection Rule, it is important to work with an expert to ensure compliance.

Do you have a potential wetland on your site? If you are planning construction, give Environmental Works a call. We have in-house wetland scientists with decades of experience ready to help. We can also walk you through the specifics of the Navigable Waters Protection Rule if you have questions or concerns. You can contact EWI online or call 417-890-9500 for more information.