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June 25, 2020

Navigable Waters Protection Rule Takes Effect

A January 2020 regulation signed by the Trump Administration and finalized by the Environmental Protection Agency (EPA) in April 2020 regarding the scope of “waters of the United States” under the Clean Waters Act took effect June 22, 2020, after a federal court request for injunctive relief failed. US District Court Judge Richard Seeborg denied the relief requested by a coalition of 18 states’ attorneys general, finding the rule was adopted in compliance with the requirements of the Administrative Procedures Act and noting the court’s “narrow role” in reviewing such matters. Additional challenges are proceeding in other federal courts, but none are ready for final disposition. Consequently, the new rule took effect on June 22.

The Clean Water Act regulates discharges of pollutants into waters of the United States (WOTUS). The new rule reduces what constitutes a WOTUS under the Clean Water Act. According to the EPA’s final rule, reducing the scope of WOTUS “increases the predictability and consistency of Clean Water Act programs by clarifying the scope of ‘waters of the United States’ federally regulated under the Act.”

The new rule interprets WOTUS to “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” Specifically, the new rule breaks down WOTUS into four categories: “(1) The territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands).” The new rule goes on to then exclude, for example “groundwater, including groundwater drained through subsurface drainage systems; ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools; ... ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations; ... stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off; ... and waste treatment systems.”

Commentators have observed removing ephemeral streams from WOTUS will mainly impact areas in the West and Southwest of the United States; however, it will still likely affect land and development throughout the country. Meanwhile, the new law does not undercut any existing state regulations or authority of state agencies that may also regulate certain waters. Navigating the new rule in conjunction with past practices and existing state regulations may create confusion on the ground, but it is seen as a major victory for landowners and homebuilders.

If you have any questions regarding the content of this alert, please contact Jeff Palumbo, partner, at jpalumbo@barclaydamon.com; Corey Auerbach, partner, at cauerbach@barclaydamon.com; Ari Goldberg, associate, at agoldberg@barclaydamon.com; or another member of the firm’s Land Use & Zoning Practice Area.

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