On Aug. 31, 2021, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (hereafter referred to as the Agencies) issued a statement saying the Agencies would immediately halt implementation of the Navigable Waters Protection Rule (NWPR) in response to an order vacating and remanding the Clean Water Act’s regulatory definition of “waters of the U.S.” (WOTUS) under the NWPR as a result of a ruling by the U.S. District Court for the District of Arizona under the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency.
While the Agencies had already announced their intention back on June 9, 2021, to propose a new WOTUS regulatory definition following a two-step federal rulemaking process. The importance to NAHB’s membership of that two-step federal rulemaking process was the NWPR’s definition of WOTUS was to remain in effect. However, the Agencies’ announcement on Aug. 31, 2021, means applicants seeking either approved jurisdictional determinations (AJDs), or subsequent Nationwide wetlands permits from the Corps are immediately subject to a WOTUS regulatory definition and corresponding regulatory guidance what was in place prior to 2015.
The FAQ below provides interim (unofficial) guidance from NAHB based upon the CWA statute, existing regulatory guidance documents, and past practices by the Agencies. NAHB will continue to monitor the Agencies for additional guidance concerning the status of the ruling by the U.S. District Court for the District of Arizona to vacate the NWPR.
Applicants With Issued JDs or NWPs for Ongoing or Planned Projects
Yes, the Corps requires all AJD issued by the Corps Districts to include a statement affirming the jurisdictional determination included in the AJD is valid for a period of five years from date of the signed AJD. (See Corps Regulatory Guidance Letter No. 05-02.)
Yes, the CWA statute requires that all general wetlands permits (i.e., NWPs) are good for a time period not to exceed five years. (See CWA Section 404(e).)
Applicants Awaiting JDs or NWPs from the Corps
Yes, unfortunately the Agencies announcement on Aug. 31, 2021, means currently all pending and AJDs and NWPs will be issued based upon the Agencies’ interpretation of the pre-2015 WOTUS definition.
No. Under the Corps’ existing regulatory guidance, applicants not wishing to wait for the Corps to issue an AJD and instead move directly to obtaining a federal wetlands permit can voluntarily request a preliminary jurisdictional determination (PJD) from their Corps District. (See Corps Regulatory Guidance Letter No. 16-01.)
Importantly, under a PJD, the Corps is not actually making a jurisdictional determination regarding whether aquatic resources on the property are in fact jurisdictional under the CWA.
- Rather, under a PJD, the Corps presumes all identified aquatic resources (waterbodies and wetlands) are covered by the CWA’s federal wetlands permitting process.
- Importantly, under a PJD, the Corps will treat all identified aquatic resources on a property as potentially subject to compensatory mitigation requirements.
Land Owners With Ongoing or Planned Projects Based Upon NWPR Definition of WOTUS
Only the Agencies through the AJD process can provide land owners with the specificity needed to determine which aquatic resources are jurisdictional or non-jurisdictional under the CWA. Furthermore, under the pre-2015 WOTUS definition, aquatic features such as ephemeral streams or ditches and non-navigable, non-adjacent wetland may have to undergo a “significant nexus” analysis by the Agencies before their jurisdictional status is known.
Unfortunately, under the pre-2015 WOTUS and regulatory guidance, the Agencies will need to perform a “significant nexus” analysis before providing an AJD on most ephemeral features.
Basic Information About the Pre-2015 WOTUS Regulatory Definition
Under the pre-2015 WOTUS definition and regulatory guidance, developers and builders can expect:
- More adjacent wetlands to be found jurisdictional based upon concepts such as “neighboring,”
- More ephemeral streams and ditches to be found to be jurisdictional, and
- The Agencies to perform “significant nexus” determinations for:
- Tributaries to traditional navigable waters or to interstate waters;
- Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters; and
- Waters that fall under the “other waters” category of the regulations, including intrastate lakes, rivers and mudflats.
The following aquatic features have consistently been considered jurisdictional under any regulatory definition of WOTUS:
- Territorial Seas — shoreline tidal areas and up to 12 nautical miles out from the shoreline,
- Traditional Navigable Waters (i.e., waterbodies capable or historically capable of supporting commerce),
- Non-navigable tributaries with perennial or intermittent surface water flow,
- Impoundments of any jurisdictional feature, and
- Adjacent wetlands that directly touch (i.e., abut) tributaries, Traditional Navigable Waters, or Territorial Seas.
Under the 2008 Rapanos guidance, the jurisdictional status of the following aquatic features must be based upon the outcome of a significant nexus determination of the aquatic feature:
- Non-navigable tributaries that are not relatively permanent — meaning having flow year-round or at least continuously flow seasonally (e.g., three months). (See page 6 of the Rapanos guidance.)
- Wetlands adjacent to non-navigable tributaries that are not relatively permanent.
- Wetlands adjacent but do not directly touch (abut) a relatively permanent non-navigable tributary.
Under the 2008 Rapanos regulatory guidance, the Corps must perform a case-by-case “significant nexus” analysis prior to making a jurisdictional determination (JD) for intermittent or ephemeral waterbodies (i.e., tributaries and ditches) that contributes flow directly or indirectly to a downstream traditional navigable water (TNW) and wetlands that are adjacent to but not directly abutting these intermittent or ephemeral waterbodies. During the “significant nexus” analyses, the Agencies (i.e., Corps and EPA) must assess the flow characteristics and ecological functions performed by these waterbodies or wetlands alone or in combination with other adjacent wetlands in order to determine if they have a more than insubstantial or speculative effect the chemical, physical, or biological integrity of the downstream TNW.