Source: Gary P. Fleming, DCR

On January 23, 2020, the Environmental Protection Agency (EPA) and Department of the Army finalized the Navigable Waters Protection Rule that redefines “waters of the United States” (WOTUS) and clarifies the limits of federal control under the Clean Water Act (CWA). The Navigable Waters Protection Rule (the “rule”) will become effective 60 days following publication in the Federal Register.  The rule, in combination with existing state, local, and tribal regulations and programs, protects the nation’s water resources in accordance with the CWA. 

The definition of WOTUS determines which waters will fall under federal protections, which means that land disturbers must obtain approval and be issued federal permits before disturbing a wetland or stream by clearing, filling, draining, etc.  Section 404(e) of the CWA states that permits may only authorize activities that will have only minimal adverse effects on the environment. 

The new rule was developed in response to a decision by federal courts that found the definition of WOTUS adopted in 2015 to be too broad.  Under new leadership, the EPA and the Department of the Army were also concerned that the definition had expanded federal control over local land use decisions.   In accordance with President Trumps’ Executive Order 14, the EPA and the Army proposed a new definition, reducing the number of wetlands and streams that are considered jurisdictional at the federal level. 

The new definition of WOTUS includes many of the waters that were federally protected previously such as traditional navigable waterways, tidal waterbodies, lakes, and ponds that contribute flow to tributaries, streams, and wetlands.  The most significant changes to the definition are the exclusions for: 1) ephemeral streams and 2) wetlands that do not have a direct hydrologic surface connection to other waterways. 

Ephemeral streams are features that flow only as a direct response to precipitation, occurring above the groundwater table.  It was estimated in 2017 by the US Geological Survey (USGS) using the National Hydrography Dataset (NHD) that 18% of all streams nationwide are ephemeral.   These streams can flow into larger networks of intermittent or perennial streams, evaporate before reaching other water networks, or, with a large rain event, absorb into the ground, eventually reaching groundwater.    In addition to the potential of these streams to carry pollutants downstream, this exclusion presents uncertainty for practitioners, as ephemeral streams can be difficult to differentiate from intermittent streams in the field.  Intermittent streams are those that cease flowing for weeks or months at a time. Uncertainty with jurisdictional determinations can delay permit applications, which in turn can delay development projects.    

Wetlands are features that provide numerous functions, such as storing floodwaters, maintaining and improving water quality, and providing habitats.  In addition to ephemeral streams, the rule also excludes isolated wetlands, which are defined as wetlands that do not have a direct hydrologic surface connection to other waterways.  It removes hurdles to development near inland wetlands that have only groundwater connections to tributaries.  In 2017, it was estimated that 51% of the wetland acreage mapped using the National Wetlands Inventory (NWI) would be considered as isolated and would no longer be protected under the rule.  This exclusion presents a significant reduction in the federal protection of waters across the country. 

Though the EPA and the Army finalized the rule, publication in the Federal Register is expected to be delayed due to numerous legal challenges.  Some industry groups, such as the American Farm Bureau Federation and the Public Lands Council claim that the rule is too vague, while several environmental non-profit organizations argue that the rule is not scientifically sound because it does not consider the interconnectedness of waterways.  Additionally, the National Resources Defense Council (NRDC) plans to sue because of their concern that the rule violates the Endangered Species Act by limiting the protections on habitat.   

Although the rule narrows the boundaries of federal authority, it does not supersede or replace Virginia law. The Code of Virginia has given the Department of Environmental Quality (DEQ) the authority to regulate impacts to state waters.  The Virginia Water Protection (VWP) Permit Program Regulation is designed to protect wetlands, streams, and other state waters from unpermitted impacts related to clearing, filling, excavating, draining, or ditching.  Many of the waters excluded under the new rule would still be classified as state waters.  For example, in Virginia, all wetlands remain under state jurisdiction.   Virginia has anywhere from 180,000 to 400,000 acres of isolated wetlands, depending on the method used to estimate the areas (Hershner et al., 2000b).   Though these wetlands would lose federal protection, the impacts of development to these wetlands would be mitigated by DEQ as they enforce the VWP Permitting Program. DEQ also regulates ephemeral streams with an ordinary high-water mark.  It is not known how many miles of streams in the state fall into this category because stream determinations are made on a site-specific basis.  Virginia could update the VWP Permit Program to more closely align with the new rule once it became effective. However, revising the program would require changes to existing state regulations and follow the typical regulatory process including an opportunity for public input.