Navigable Waters Protection Rule and USACE Charleston District Regional Conditions
The final Navigable Waters Protection Rule (NWPR) was published in the Federal Register on 21 April 2020 and became effective on 22 June 2020. The NWPR revises the definition of waters of the United States (WOTUS) and as a result, the U.S. Army Corps of Engineers’ (USACE) and states’ jurisdictions over surface waters. At the time of the NWPR’s implementation, southeastern states, with the exception of Tennessee, were still operating on the pre-2015 WOTUS definitions/interpretations, which based a surface water resource’s jurisdictional status on USACE’s interpretation of previous United States Supreme Court rulings, primarily Rapanos v. United States, Carabell v. United States, and SWANCC v. United States. This interpretation/definition involved an analysis methodology that some consider(ed) to be complicated, inconsistent and sometimes difficult to defend. While some environmental practitioners now contend that the NWPR has simplified and more clearly and consistently defined WOTUS, many have commented that protection of the country’s water resources has been negatively affected, particularly in states without overlapping jurisdiction.
The NWPR defines WOTUS in four distinct categories:
· territorial seas and traditional navigable waters
· lakes, ponds, and impoundments of jurisdictional waters
· adjacent wetlands
It also specifically excludes 12 categories of features:
· waters not listed as WOTUS
· ephemeral features
· diffuse stormwater run-off
· ditches not identified as WOTUS
· prior converted cropland (PCC)
· artificially irrigated areas
· artificial lakes and ponds
· water-filled depressions incidental to mining or construction activity
· stormwater control features
· groundwater recharge, water reuse, and wastewater recycling structures
· waste treatment systems
The NWPR further clarifies that certain excluded features may convey surface water flow to a downstream jurisdictional water in a typical year, thereby serving as a connection for upstream and downstream jurisdictional tributaries, lakes, ponds, and impoundments. This does not apply to wetlands, which must have a direct hydrologic surface connection to other WOTUS in a typical year to be considered adjacent and, thereby, USACE jurisdictional. It is important to note that excluded features that convey surface water flow between jurisdictional waters in a typical year do not become WOTUS themselves.
Additionally, the reissuance of 12 of USACE’s Nationwide Permits (NWPs) and 4 new ones became effective on 15 March 2021, as did the Charleston District’s Regional Conditions (RCs) for them. Some of the most substantive new RCs that are applicable to many of the new and reissued NWPs include changes to both Individual Permit (IP) and mitigation thresholds for stream impacts. The new RCs’ stream thresholds are no longer measured in linear feet, but are now calculated in area (acres). Specifically, the Charleston District’s NWP/IP threshold is now 0.05 acre (formerly 300 linear feet) and its new mitigation threshold is 0.005 acre. Because of this, it is now very important that streams’ jurisdictional extents (i.e., between ordinary high-water marks) are now accurately mapped/recorded and shown in plans as polygons, not lines. The net result is that additional linear feet of smaller stream impacts are now able to be permitted using the NWPs (e.g., the IP threshold for a 5-foot-wide stream is now 435.6 linear feet). Wider streams, on the other hand, have lower IP triggers (e.g., the IP threshold for a 10-foot-wide stream is now 217.8 linear feet).
In addition to those summarized above, the NWPR as well as the new NWPs and RCs contain other changes and interpretative nuances, resulting in both positive and negative changes to public and private permitted communities.
Please refer to these documents for more information:
Final Navigable Waters Protection Rule: Federal Register
USACE, Charleston District: Final Regional Conditions 2021
Director of Land and Water Resources
Spangler Environmental, Inc.