Navigating Muddy Waters

Hollaway Environmental + Communications Services, Inc. is keeping a close watch on the federal courts to stay on top of any new developments regarding the Clean Water Act so we can expertly help our clients navigate the muddy regulatory waters.

On Monday, August 31, 2021, a federal judge in Arizona issued an order vacating the Navigable Waters Protection Rule (NWPR) of 2020, which defined Waters of the United States (WOTUS). The NWPR exempted features such as ephemeral streams and waters, wetlands influenced solely by groundwater, and isolated wetlands from federal jurisdiction under the Clean Water Act (CWA). Since the ruling on August 31, agencies will temporarily go back to applying water protection standards from the 1980’s under the Rapanos guidance, which are more expansive than the NWPR in 2020 as the Environmental Protection Agency (EPA) reviews the judgment. This may impact project schedules and budgets that contain ephemeral streams or other features previously deemed non-jurisdictional.

The Rapanos decision established that any wetlands with a “significant nexus” would be jurisdictional. For many districts, this includes wetlands within the 100-year floodplain and does not exclude ephemeral features like the NWPR did. The USACE and EPA are working to redefine WOTUS in new legislation to replace the NWPR, so further changes are expected. A timeline for this new regulatory definition has yet to be released. In the meantime, the experts and Professional Wetland Scientists at Hollaway are available to review your projects and guide you to the permits you need in order to comply with the new legislation.