On December 11, 2018, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) proposed a new rule defining the phrase “waters of the U.S.” under the Clean Water Act (CWA). The rule would likely affect the scope of the EPA’s and Corps’ jurisdiction under Section 404 of the CWA. As proposed, the new rule would likely affect the jurisdictional status of ephemeral tributaries as well as wetlands without a direct surface connection to tributaries or navigable waters during a “typical year.” The new rule proposes to:
- Eliminate drainages that only flow after rainfall or snowmelt from being considered waters of the U.S.; and
- Limit jurisdictional wetlands to only those with a surface connection to jurisdictional waters in a “typical year.”
If implemented as proposed, the new rule would likely affect a significant number of ephemeral streams and wetlands in Colorado and the western U.S.
What Will Likely Happen?
The proposed rule will be published in the Federal Register, after which the public will have 60 days to comment. The EPA and Corps are required to review the comments before issuing the final rule, which may or may not take the same form as the proposed rule.
Although the final rule may be issued in spring/summer 2019, it is unclear if the final rule will actually go into effect as it will likely be challenged in court. The previous waters of the U.S. rule proposed under the Obama administration in 2015 was only recently reinstated in 26 states, with the implementation in the remaining states still on hold due to ongoing litigation. Therefore, project proponents should not wait for the new rule to be implemented if projects need a jurisdictional determination or have features that may be considered nonjurisdictional under the proposed rule in the future.
ERO will continue to consult with our local Corps offices and update our clients on any developments as this new rule is reviewed and potentially implemented. Please feel free to contact Aleta Powers, Moneka Worah, or your ERO project manager if you have any questions.