On April 21st, 2020, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) have officially published the new Navigable Waters Rule to define “Waters of the United States” (WOTUS) in the Federal Register. This new rule does not change the definition of a wetland but will change which water features are federally jurisdictional. Many water features, including ephemeral streams and ditches, prior converted croplands and non-adjacent wetlands, will no longer be federally jurisdictional. These excluded features will then fall to the state’s jurisdiction. This new rule is set to take effect on June 22nd, though multiple lawsuits are expected. See below illustration from the EPA for details on which water features would be excluded.
Additionally, on April 15th, 2020, a Montana federal district court issued an order that vacated Nationwide Permit (NWP) #12 for Utility Line Activities. The court held that the 2017 reissuance of NWP #12 is in violation of the Endangered Species Act due to USACE’s failure to consult under section 7. Until consultation is complete, the USACE is enjoined from authorizing any impacts to WOTUS under NWP #12.
Typically these utility projects will now be permitted under USACE Individual Permit, which is a much lengthier process. There are potentially different NWPs that the utility line activity could receive authorization under, if impacts are minimal, or if the utility is part of a linear transportation or other commercial/residential development.
Please contact Carrie Ricker, PWS, Director of Ecological Services at cricker@ctconsultants with any questions on how the new WOTUS rule or the NWP #12 suspension may affect your projects.