Navigable Waters Protection Rule

On June 22, the Corps of Engineers and EPA began enforcing and implementing nationwide new wetland regulations known as the Navigable Waters Protection Rule. The rule should be good news for development since it is clearly a step back from the current “status quo” Rapanos Guidance that the Corps has been using. However, we need to see how the Corps district offices interpret certain aspects of the regulation, particularly in the field, because the new rule is vague and introduces new criteria that we are not sure how will be interpreted. Also, similar to the 2015 Obama WOTUS Rule, it will more than likely be challenged legally and might be back in court, and if history repeats itself, then the Corps will probably revert back to using the current “status quo” rules while the legal battle works its way through the system. One of the legal challenges was recently denied in California, so the rule so far has withstood legal challenges.

Here are some key points that you need to know:

  • Ephemeral tributaries are no longer jurisdictional. What we are not sure of is how the Corps is going to decide in the field which tributaries are intermittent (jurisdictional) vs. ephemeral (non-jurisdictional). They have introduced a term called “typical year” that depending upon how that is interpreted will play a major factor in making determinations. In the meantime, if a given stream channel is not mapped on the USGS as a dashed blue line then it is likely too small and thus ephemeral but again we will need to hear from the Corps on exactly how they are going to make this determination.
  • Jurisdictional Wetlands are wetlands that are touching or abuting a water of the U.S. and/or it is subject to inundation from flooding during a “typical year.” The term “typical year” being defined as precipitation within a normal periodic range for a geographic area based on a rolling 30 year period excluding extreme drought or wet years. It is not clear whether they are going to use floodplain maps, which rainfall data will they use, what size event, how will they decide which wet or dry years to exclude, etc to assert jurisdiction. Under “status quo”, the Galveston District has used the FEMA 100-year floodplain to regulate wetlands within the floodplain. Under the Trump WOTUS Rule, the Corps Galveston District has indicated that they will likely no longer use the 100-year floodplain and that some of the wetlands that were regulated under “status quo” may no longer be regulated under the new rule.
  • Now that the rule is in effect, similar to the way it was in 2015 under the Obama rule, it may take a while (i.e. 6+ months) before the local Corps field offices decide exactly how they are going to enforce and make determinations based upon the new regulation.
  • The rule will likely be challenged legally. The Obama WOTUS rule was sued 6 weeks after the effective date and a “stay” was issued. If something like this happens again, then we will likely roll back to the current “status quo” regulations while it is fought over in court.
  • Last, if there is a change in the administration due to the November national election, expect action to be taken to begin reversing this regulation and restoring components of the Obama WOTUS regulation since the EPA director is appointed by the President and can overrule the Corps on jurisdictional determinations.

Contact David Sherrill, Vice President for more information.