Five Things Commercial Real Estate Must Know About the Updated Navigable Waters Protection Rule
This clock is now ticking on the final version of the Navigable Waters Protection Rule. The updated regulation takes effect 60 days after its April 21 publication in the Federal Register, meaning it will become the law of the land beginning June 22.
The move is the final part of a two-step process that repeals the 2015 Clean Water Rule and restores a consistent definition of Waters of the United States (WOTUS) throughout the country.
As a commercial real estate professional, there are three key changes – and the two unchanged items – you’ll need to understand.
The Three Changes You Need to Know
1. Federally Regulated Waters
Since the Clean Water Act was published in 1972, various rules and Supreme Court cases have tried to further define what meets the definition of “Waters of the United States.” As a result, there has been ambiguity and inconsistency about how these definitions have been interpreted by different agencies. The new rule provides clarity regarding what is to be regulated as WOTUS, stating that the following waters will continue to be federally regulated under the Clean Water Act:
- Territorial seas and traditional navigable waters;
- Perennial and intermittent tributaries;
- Lakes, ponds, and impoundments of jurisdictional waters; and
- Adjacent wetlands.
2. Waters Not Federally Regulated
Per the definition of WOTUS in the new rule, the following waters will not be federally regulated under the Clean Water Act:
- Ephemeral features that contain water only in direct response to rainfall or snowmelt; (Excluding ephemeral streams from jurisdiction is a particularly noteworthy change. Researchers can use various data sources, including the National Oceanic and Atmospheric Administration and the Natural Resources Conservation Service, to differentiate between ephemeral and intermittent flow, especially in mountainous regions.)
- Groundwater;
- Most farm and roadside ditches;
- Prior converted cropland. Although if the “prior converted cropland” meets the “abandonment” criteria (now defined as not used for agricultural purposes at least once in the last five years), areas that have reverted to wetlands and meet the conditions of an “adjacent wetland” as defined in the new rule will be subject to federal jurisdiction under the Clean Water Act.
- Artificially irrigated areas;
- Farm and stock watering ponds;
- Stormwater control features;
- Waste treatment systems;
- Wetlands that do not meet the adjacency criteria and ephemeral features, including streams and ditches.
3. Determining Surface Water Connection Between Features
In determining whether or not there is a surface water connection between features, the rule proposes that such determination be based on the “typical year,” which means the normal periodic range of precipitation and other climate variables over a rolling 30-year time frame. This ensures that jurisdictional determinations are not based on conditions that are abnormally wet or dry, such as droughts or flooding. A variety of validated data sources can be used to determine whether the current conditions fall within those of the “typical year.”
Unchanged But Noteworthy
1. Approved Jurisdictional Determinations
The agencies affirm that Approved Jurisdictional Determinations (AJDs) issued under the 2015 Clean Water Rule will remain effective for five years after the date of issuance. However, a project proponent can request a revised AJD based on current rules, if desired. Receipt of a revised AJD may be beneficial, for example, if wetlands that were previously determined to be jurisdictional under the 2015 rule could be deemed isolated under current regulations. Each project is unique; therefore, we recommend that you contact an environmental professional to discuss the potential value of requesting a revised AJD.
2. Remember, You Must Comply with Regulations at the State and Local Level
The rule does not change any existing protections or regulations on wetlands and streams that may exist at the state or local level. Some states already have regulations to protect aquatic features that are not subject to federal regulation, such as isolated wetlands. Therefore, evaluation of permitting strategy must consider state-specific regulations.
Legal action from environmental groups and some states is expected and could slow the rule’s implementation even after June. But the new rule aims to provide clarity to the federal regulation of waterways, something that’s been missing for years. Members of the commercial real estate community should benefit from that clarity when the process is complete.
If you have any questions about this news, please contact Rob Geho (614-310-1044 or rgeho@cecinc.com), Stephanie Miller (314-656-4584 or smiller@cecinc.com) or Bill Acton (614-588-4486 or bacton@cecinc.com).
William T. Acton is a Vice President and Ecological Practice Lead in Civil & Environmental Consultants, Inc’s Columbus, Ohio, office. He has over 20 years’ experience in real estate due diligence, site selection, environmental policy and compliance. His primary practice area is surface water and endangered species issues for clients in the real estate development, mining, power, and oil and gas exploration, production and distribution industries.
Rob Geho is a Senior Project Manager in CEC’s Ecological Services Practice at their Columbus, Ohio, office. He has more than 20 years of experience in environmental investigation, permitting, and regulatory compliance for multiple industry sectors, with a focus on energy projects.
Stephanie Miller, PWS, is a Project Manager II in CEC’s Ecological Sciences Practice at their St. Louis office. She is certified in Wetland Delineation and Regional Supplement Training and is a Lake County Certified Wetland Specialist.
