Navigable Waters Protection Rule

September 10, 2020
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Navigable Waters

In June 2020, the Navigable Waters Protection Rule took effect.  This revision of U.S. Army Corps of Engineers and USEPA administrative rules defines and attempts to settle a question that has been controversial since the Clean Water Act passed in 1972, namely: how far upstream can the federal government regulate fill and dredge activities in rivers, streams, lakes, ponds, and wetlands?  In other words, which waters are “waters of the U.S.” subject to federal jurisdiction and which waters are not subject to federal law?  The Corps has regulated actions in Navigable Waters since 1899 under the Rivers and Harbors Act. Since 1972, the USEPA has regulated activities that would affect the integrity of aquatic ecosystems.  Almost immediately since the passage of the Clean Water Act, the Supreme Court has been asked several times to decide whether adjacent wetlands and other waters are subject to regulation under the Act.

The Navigable Water Protection Rule maintains the existing protections for large navigable streams, rivers, lakes, and ponds, as well as adjacent wetlands and intermittent streams.  It removes federal authority for regulating ephemeral streams, as well as wetlands that do not have a connection to an intermittent or perennial stream at least once in a “normal year.”  In response, several states have changed their regulations of ephemeral streams and isolated wetlands, adding to the layers of permitting that entities must complete for industrial activities.

EnviroScience wetland scientists have decades of experience helping our clients comply with the ever-changing world of federal and state regulations.  If you have questions about how your project may be affected by this change, please contact us!

Additional Resources

1. Navigable Waters Protection Rule

Below are links to recorded webinars that the Corps of Engineers produced for Regulatory Program staff, which are also available on EPA’s website (links to youtube).

Navigable Waters Protection Rule Webcast – February 13, 2020 https://youtu.be/dt_OoxYU0-M

Navigable Waters Protection Rule Overview and Discussion of CWA Programs – June 9, 2020 https://youtu.be/grujkssydbg

“Typical Year” – June 16, 2020 https://youtu.be/XXda96XKRM8

Tributaries, Ditches, Flow Regime, and Assessment – June 23, 2020 https://youtu.be/wEtAWaRjlkQ

Adjacent Wetlands, Lakes, Ponds, and Impoundments – June 30, 2020 https://youtu.be/8Uo7M3Q3CtQ

Exclusions and More – July 7, 2020 https://youtu.be/hqsH8e11L7I

We are discussing potential opportunities for virtual training, but it will likely not happen until Fall.  We will notify you when we have more details on potential NWPR training opportunities.

2. Nationwide Permit Reauthorization

On July 31, 2020, the proposal to reissue the nationwide permits (NWPs) was submitted to the Federal Register for publication. The proposed rule has not yet been published, but is expected to be published sometime in September which will start the 60-day comment period. The pre-publication copy of the proposed rule is posted on the HQ Regulatory web page at:  https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/National-Notices-and-Program-Initiatives/  The pre-publication copy will allow you to begin to review the proposed rule in advance of its publication in the Federal Register and the start of the official public comment period.  Also, soon after the proposed rule is published Districts will publish Public Notices with proposed regional conditions.  We will also make requests to the state water quality certifying agencies (NYSDEC, NYSDPS, and OEPA) and coastal zone consistency agencies (NYSDOS and ODNR) to provide determinations on water quality certification and coastal zone consistency for each of the NWPs. 

3. Clean Water Act Section 401 Certification Rule

On June 1, 2020, EPA finalized the CWA Section 401 Certification Rule https://www.epa.gov/cwa-401/final-rule-clean-water-act-section-401-certification-rule to implement the water quality certification process consistent with the text and structure of the CWA. The final rule will become effective on September 11, 2020.  The rule itself is not very long and I encourage everyone to review the rule to ensure you understand new procedures associated with submission of requests for water quality certifications to NYSDEC, NYSDPS, and OEPA.


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