Agencies Halt Implementation of Navigable Waters Protection Rule
From the desk of Teresa Amitrone, Project Manager
The U.S. District Court of Arizona ruling has stopped the implementation of the 2020 Navigable Waters Protection Rule. Agencies are now following the guidance for Jurisdictional Determinations established prior to 2015.
Excerpt from the EPA Website: https://www.epa.gov/wotus/final-rule-navigable-waters-protection-rule
[[The Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps. This includes working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.]]
What does this mean?
The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) have halted implementation of the Navigable Waters Protection Rule nationwide and are now (until further notice) interpreting the regulatory limits of the “waters of the United States” as they were in the prior to the 2015 regulatory guidance. Applications in the queue are now being reviewed and issued under the old, pre-2015 guidance. Currently, all information indicates that existing Jurisdictional Determinations (JD) issued under the Navigable Waters Protection Rule will remain valid until their expiration; however, this ruling does open the door for permit challenges.
There are a few significant differences in how site features are qualified as “waters of the United States” in the pre-2015 regulations, namely around adjacent wetlands, ditches, and ephemeral streams. For more information, contact our Jurisdictional Determinations expert, Teresa Amitrone at x2220.