The U.S. Army Corps of Engineers (“USACE”) and U.S. Environmental Protection Agency (“EPA”) published the Navigable Waters Protection Rule in the Federal Register on April 21, 2020. The new rule provides a definition of the Clean Water Act (“CWA”) term Waters of the United States (“WOTUS”) and will replace the rule published on October 22, 2019, with a scheduled implementation date of June 22, 2020. With the addition of ditches and limitation on stormwater management, many features will now become jurisdictional and can potentially affect your project.
On April 21, 2020, the U.S. Army Corps of Engineers (“USACE”) and U.S. Environmental Protection Agency (“EPA”) published the Navigable Waters Protection Rule in the Federal Register. The new rule provides a definition of the Clean Water Act (“CWA”) term Waters of the United States (“WOTUS”) and will replace the rule published on October 22, 2019, with a scheduled implementation date of June 22, 2020. With the addition of ditches and limitation on stormwater management, many features will now become jurisdictional and can potentially affect your project.
Jurisdictional Categories Under the CWA
Categories of waters that are considered WOTUS:
- Territorial seas and traditional navigable waters;
- Tributaries of such waters;
Certain lakes, ponds, and impoundments of jurisdictional waters; and*·
- Wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands).
Not CWA Jurisdictional
The new rule excludes features and/or waters that are not WOTUS:
- Water bodies that are not included in the four WOTUS categories listed above;
- Groundwater, including groundwater drained through subsurface drainage systems, such as drains in agricultural lands;
- Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
- Diffuse stormwater run-off and directional sheet flow over upland;·
- Many farm and roadside ditches;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters;
- Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity;
- Stormwater control features excavated or constructed in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater runoff;·
Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, that are constructed in upland or in non-jurisdictional waters; and*·
- Waste treatment systems have been excluded from the definition of WOTUS since 1979 and will continue to be excluded under the final rule.
BSE Can Help
With the addition of ditches and limitation on stormwater management, many features will now become jurisdictional. The WOTUS definition triggers penalties of up to $52,500 per day and per violation with regulatory requirements for oil pollution reporting, recordkeeping, response and cleanup, and permitting. BSE is tracking this rule and related developments. If you have any questions for how the new rule may apply to one of your projects, please reach out to Andreana Madar at Andreana@BrightSkyENV.com