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Waters of the U.S.: Helping You Navigate the Evolving Clean Water Rule

Let’s pretend for a minute that over the past three years you’ve had time to follow the development of the new Clean Water Rule. Then let’s say you’ve read and interpreted the rule and understand the changes. Congratulations, you need read no further! However, if you are a land owner, developer, or anyone else involved in property transactions who may not have been tracking all the changes to the rule affecting jurisdictional waters, then you need a partner who has: Terracon.

Clean Water timelineThe Environmental Protection Agency (EPA) has ultimate authority over the jurisdictional status of waterbodies and wetlands in the U.S. and the U.S. Army Corps of Engineers (USACE) typically administers and handles the program’s day-to-day responsibilities. Contractors, architects, and lenders generally understand that land disturbances due to construction or development typically require interaction with the USACE when the disturbances result in impacts to waters and wetlands. However, to most, navigating through the intricacies of the Section 404 (of the Clean Water Act) Regulatory Program can seem insurmountable.

Over the years, Terracon has helped thousands of clients step through the regulatory process as part of site expansion projects that potentially impact their surroundings, understanding that USACE District offices often had developed their own processes, tendencies, regional conditions, and interpretations of applicable statutes. This sometimes led to complicated review procedures, application processes, and differing authorization timelines. The issue could also be further complicated by USACE project managers with different interpretatio2015-1130_CWA_infoboxns of the regulatory process.

Due to these challenges, the EPA and the USACE have fielded many requests from stakeholders to add clarity to the process in the form of a rule. That clarification, the new Clean Water Rule, aimed to define terms such as: significant nexus, neighboring, tributary, floodplain, and riparian area. Based on some of these definitions, the agencies could make categorical jurisdictional determinations for certain classifications of waters and wetlands. According to the agencies, the rule reduces documentation requirements and time frames to make Approved Jurisdictional Determinations by decreasing how often case-specific significant nexus analysis is required. However, as shown in the timeline provided, there have been a number of challenges to the rule being implemented including a preliminary injunction by a federal judge in North Dakota and a stay from the Sixth Circuit Court of Appeals.

What’s next?

While the exact next steps remain unclear, some form of a rule change is anticipated. Permit applicants and other stakeholders should expect modifications to the process and possibly longer than usual regulatory delays during implementation. Terracon’s natural resources specialists have digested the thousands of pages of documentation associated with the proposed Clean Water Rule changes and continue to follow constant activity taking place surrounding its development. Regardless of when a final determination occurs, Terracon is eager to assist clients through the complexities of the Section 404 Regulatory Program and looks forward to partnering with clients to successfully navigate Waters of the U.S.

 


Carland Holstead is a senior biologist and natural/cultural resources department manager in the Dallas office. He holds the Professional Wetland Scientist (PWS) certification given by the Society of Wetland Scientists. Carland oversees practices including wetland and stream determinations and delineations, USACE permitting, mitigation plan development, threatened and endangered species habitat assessments, NEPA assessments including CEs, EAs, and EISs, cultural resources assessments, and ecological risk assessments