Wetlands management and related federal permitting is changing –AGAIN. If you or your organization seek wetlands or related permitting, then the latest changes in for “navigable waters” impact both regulators and the regulated community – and may change your approach. Projects that impact “Waters of the United States” (WOTUS) under the Clean Water Act (CWA) from the Army Corps, Environmental Protection Agency (EPA), and states administering CWA permitting programs should look closely at these changes.

On September 3, 2021, the EPA and Army Corps of Engineers (Corps) (collectively “the agencies”) announced they are halting implementation of the 2020 Navigable Waters Protection Rule nationwide, and will interpret “waters of the United States” consistent with the “pre-2015 regulatory regime” until further notice. There is now renewed uncertainty over CWA permitting for activities affecting wetlands and streams that are “not relatively permanent”—ephemeral tributaries which flow only in response to precipitation, and intermittent streams which do not typically flow year-round or have continuous flow at least seasonally.

The agencies’ September 3 announcement came in response to 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. The 2020 Navigable Waters Protection Rule (NWPR) replaced the Obama administration’s 2015 Clean Water Rule—both rules intended to provide certainty over the Clean Water Act’s jurisdictional reach by comprehensively outlining the specific categories of waters that are, and are not, WOTUS. The 2020 Rule significantly curtailed the scope of federal Clean Water Act jurisdiction relative to the 2015 Rule, but regardless, no such specificity existed either way prior to 2015.

For now, on streams and wetlands over which the CWA’s applicability is ambiguous, the agencies will once again make the determination on a case-by-case basis until further notice.

Here are three key points to summarize the current situation:

1. Under the “pre-2015 regulatory regime”—

• The agencies will assert jurisdiction over the following waters of the United States:
  • Traditional navigable waters
  • Wetlands adjacent to traditional navigable waters
  • Non-navigable tributaries of traditional navigable waters that are relatively permanent
  • Wetlands that directly abut such tributaries
• The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a “significant nexus” with a traditional navigable water:
  • Non-navigable tributaries that are not relatively permanent
  • Wetlands adjacent to non-navigable tributaries that are not relatively permanent
  • Wetlands adjacent to but that do not directly abut a relatively permanent nonnavigable tributary

2. Regardless of federal jurisdiction tied to “waters of the United States,” states may define their own jurisdiction in a more expansive manner. California has instituted its own dredge-and-fill permitting program covering all “waters of the state” (the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State). The program recently circumvented a legal challenge, and is now applied to waters of the state in addition to WOTUS. By contrast, Colorado does not have any dredge-and-fill program of its own, and continues to rely on federal section 404 permitting. Accordingly, wetlands/section 404 permits may now be necessary in Colorado for projects that would not have required a permit under the NWPR.

3. The agencies ultimately intend to codify yet another set of formal rules. Like their predecessors in 2015 and 2020, new rules will attempt to comprehensively outline the specific types of streams and other waterbodies that constitute waters of the United States, and to which the statute applies, and resolve persistent ambiguities. The agencies recently wrapped up initial public outreach efforts, but have not initiated the official rulemaking process yet. Once that happens there will be additional and more-formal opportunities for stakeholder input.

Background: “Waters of the United States” (WOTUS)

The agencies’ WOTUS announcement is the latest turn in the longstanding controversy over the following question:  specifically what streams and waterbodies do the CWA protect in the first place? The statute itself states that it applies to “navigable waters,” which it defines simply as the “waters of the United States.” The statute tasked the EPA and the Corps to come up with rules defining the specifics of how the statute would apply.

For certain categories of waters, there has never been any debate that the statute does apply:  coastal zones, navigable interstate rivers and their permanent tributaries, and large lakes are among them. But what if, for instance, someone wanted to undertake a project that involved disturbing a small patch of isolated wetland located far away from any permanent stream, or disturbing a small drainage that only flows consistently during high-precipitation years? There is no clear answer under current law about whether those activities would require a federal CWA permit.

The present conflict originated in 2001 and 2006, when the Supreme Court issued two rulings pivotal to the definition of WOTUS—Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States. Both court rulings interpreted the scope of the CWA more narrowly than the Corps and EPA had done previously in regulations and guidance, but created uncertainty about the intended scope of waters protected by the CWA. In particular, the Court’s 2006 decision in Rapanos resulted in three different opinions with the Court split 4-1-4, meaning no majority opinion creating an actual rule. The agencies issued formal guidance documents in 2003 and 2008, but this did not resolve all interpretive questions, and diverse stakeholders requested a formal rulemaking to update the existing rules.

Accordingly, the agencies finalized the Clean Water Rule in 2015, designed to clarify the ambiguities remaining after the Supreme Court’s two decisions. In 2020, the Trump administration replaced the 2015 rule with the NWPR, which significantly curtailed federal jurisdiction relative to the 2015 rule. Now as of September 3, the agencies have suspended implementation of the NWPR, and are reverting to the pre-2015 regulatory regime until they can craft a new rule comprehensively outlining the waters over which they may assert jurisdiction.

Colorado’s Situation

In general, the Clean Water Act prohibits the following activities from taking place without a federal permit:  pollutant discharges from specific point sources (Section 402) and dredge-and-fill operations that disturb wetlands/streams (Section 404). In contrast to point-source pollutant discharges—for example, treated effluent discharged from a wastewater treatment plant—discharges associated with “dredge and fill” typically involve construction projects (think new residential development) where wetlands or streambeds are disturbed as part of the project.

Colorado administers its own point-source discharge permit program under Section 402, prohibiting unpermitted discharges into “state waters,” meaning “any and all surface and subsurface waters which are contained in or flow in or through this state.” Colorado’s pollutant-discharge program and activities subject to it are not affected by the ongoing WOTUS controversy.

However, Colorado does not have a state-level dredge-and-fill permitting program under Section 404. Instead, like most states, Colorado has historically relied on federal Section 404 permits—permits issued by the Army Corps of Engineers under Section 404 of the CWA—to authorize dredge-and-fill operations in the state.

When the NWPR took effect in Colorado on April 23, 2021, dredge-and-fill activities once requiring a federal Section 404 permit would no longer need one. In litigation undertaken against the 2020 NWPR, Colorado’s Attorney General took the legal position that without a federal permit, dredge-and-fill activities affecting these “gap waters” would be illegal under state law. In response to the bind this created, Colorado had been undertaking efforts, simultaneously with the litigation, to erect its own dredge-and-fill permitting program. However, the state has suspended the fledgling program in the wake of the federal agencies’ September 3 announcement halting NWPR’s implementation.

In response to the September 3 announcement, Colorado’s environmental regulatory agency has issued the following guidance to project proponents:

[I]f a project has a permit from the Army Corps of Engineers for waters that were WOTUS using the pre-2015 regulatory regime, the department does not plan to initiate any enforcement activities. For entities that received a jurisdictional determination from the Corps between April 26 and Sept. 3 that identified waters as non-jurisdictional under the 2020 Navigable Waters Protection Rule, we recommend either re-submitting an application to the Corps for a new jurisdictional determination to establish whether the project will impact WOTUS using the pre-2015 regulatory regime or just obtaining 404 permit coverage for dredge and fill activity in waters that are potentially WOTUS using the pre-2015 regulatory regime.

For questions about how these recent developments may affect your existing or planned projects, please contact Dan Condren at dcondren@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

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