Regulatory Update- The Navigable Waters Protection Rule

By MAP Environmental Inc. | June 30, 2020

In today’s unprecedented and ever-changing regulatory arena, each day can seem vastly different from the one before, and consistency can be tough to find. Even straightforward approvals such as jurisdictional wetlands determinations have been challenging as of late. Fortunately, we are finally achieving some clarity.

There have been numerous changes to the definition of Waters of the United States (WOTUS) over the past five years: from the 2015 Clean Water Rule, to the reinstatement of 2008 Rapanos Guidance, and, most recently, to the enactment of the Navigable Waters Protection Rule. This latest rule, which became effective on June 22, 2020, regulates WOTUS under four categories: the territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds, and impoundments; and wetlands adjacent to jurisdictional waters.

Here in Hampton Roads, where inland wetlands are oftentimes connected to traditional navigable waters through a series of rivers, streams, or ditches, the new rule’s increased clarity in terms of “adjacent wetlands” is a potential game changer. Under the new rule, the United States Army Corps of Engineers (USACE) only asserts jurisdiction on wetlands and/or waters that have a regular surface water connection with adjacent jurisdictional waters. Additionally, the rule clarifies the jurisdiction of ditches, many of which were jurisdictional under the 2015 Clean Water Rule and Rapanos Guidance. Now, under the Navigable Waters Protection Rule, ditches that are not traditional navigable waters, tributaries, or constructed in adjacent wetlands are excluded from the definition of WOTUS.

Both the USACE and Virginia Department of Environmental Quality (DEQ), who will continue regulating many of the aforementioned disconnected features and ditches as State Waters, are in the process of determining how each agency will implement the new rule. MAP Environmental Inc. (MAP) is engaged with these agencies on the timing and actual implementation of the rule and envisions a regulatory workshop in the coming months. In the interim, we are tracking their progress closely and are committed to keeping our clients updated with how the new rule will affect their current and future projects.