![]() ![]() At this time, the ruling appears to apply nationwide. The order vacated NWP 12 and enjoined the USACE from using NWP 12 to authorize impacts to waters of the U.S., citing that the USACE did not fully consider impacts to federally protected species in its issuance of NWP 12. The finalization of the ruling comes on the heels of sweeping legislation made by a Montana judge last week regarding using Nationwide Permit 12 (NWP) for utility and pipeline infrastructure. Nationwide Permit 12 Uncertainty for Utility Lines and Pipelines These states will probably see nearly a 25% reduction in protection for their state waters. The lack of protection under the NWPR for temporary waters like those above will likely impact arid states, such as Arizona and New Mexico. These water sources serve as a habitat for many species. This waterbody typically forms after rain or during spring and early summer. Like a temporary stream, an ephemeral wetland is a region that briefly holds water. Before the NWPR, these waters were considered jurisdictional, given they had some chemical, physical, or biological connection to downstream waters protected by the CWA. Why are Ephemeral Streams Important?Įphemeral streams flow into valuable downstream waters and maintain water quality by retaining dangerous pollutants or overflow. This waterbody can be present but unnoticed on a project site. Ephemeral Streams What is an Ephemeral Stream?Īn ephemeral stream is a water feature that only flows in response to precipitation. The lack of protection for features like ephemeral streams is likely to stir pushback from environmental groups who speak about the value of these waters. The Navigable Waters Protection Rule is a dramatic shift from preceding interpretations of “Waters of the U.S.,” such as the Clean Water Rule, which included federal protection for ephemeral waters and ditches (provided they met specific downstream connectivity requirements.) Though critiques of these prior definitions surrounded them not being inclusive enough, the implementation of the NWPR further scaled back protections for waters. The vague definition provided for WOTUS within the CWA has resulted in the inconsistency of clean water protection across administrations. This change in the defined WOTUS is just the most recent redefining of these waters. However, green groups are already prepping their lawsuits, so it is uncertain how long the rule will be in effect. Under this new rule, project proponents will find fewer waters and wetlands on their projects that require avoidance, minimization, or 404 permitting. Is a Section 404 Permit Required Under the Navigable Waters Protection Rule?Īccording to Section 404, any impact (i.e., placement or removal of fill) in waters of the U.S. This permit regulates discharge in water sources deemed WOTUS to maintain water quality standards. Some of the most notable waterbody types include:Įphemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pool ĭitches that are not considered traditional navigable water, tributaries, or that are not constructed in an adjacent wetland, subject to certain limitations and,Īrtificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters.Ĭlean Water Act Section 404 Permit Under the Navigable Waters Protection Rule What is a Section 404 Permit? is considerably longer than those protected. The list of water bodies that are NOT waters of the U.S. Many waters once protected under the Clean Water Act are now considered non-jurisdictional under the NWPR. Perennial and intermittent tributaries that contribute surface water flow to such watersĬertain lakes, ponds, and impoundments of jurisdictional watersĪn adjacent wetland to other jurisdictional waters.įinal Rule: Definition of Non-Jurisdictional Waters The territorial seas and traditional navigable water Transect published a summary of the draft rule earlier this year, and the final rule reads the same. The Navigable Waters Protection Rule will leave fewer waters under federal jurisdiction. Final Rule: Waters of the United States Definition The Waters of the United States (WOTUS) are considered under federal jurisdiction and given federal protection under the Clean Water Act (CWA). This ruling redefines requirements for developers and will likely impact state regulations as local governments try to recover waters valuable to their state. Today, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) published the final Navigable Waters Protection Rule, which redefines what types of waterways receive protection under Section 404 of the Clean Water Act (CWA). Navigable Waters Rule Changes CWA Jurisdiction Over the river and through the woods, developing without an NWP, we go. ![]()
0 Comments
Leave a Reply. |