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ACT FAST: EPA Repeal of 2015 Clean Water Act Becomes Final in December 2019; May Lead to More USACE Regulation
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By Carie Wingert – Senior Environmental Scientist

On October 22nd, the EPA published a Final Rule in the Federal Register repealing the 2015 Clean Water Rule.

The effect of this Final Rule will be changes to the Code of Federal Regulations restoring the language that existed prior to the 2015 Rule.  The language would revert to a 1986 interpretation of the Clean Water Act’s definition of waters of the U.S. (WOTUS) with guidance from 2006 Supreme Court case of Rapanos v. US.  This new Final Rule becomes effective on December 23, 2019.

What this could mean for your project:

  • The definition of WOTUS will become less clear and subject to greater discretion by United States Army Corps of Engineers (USACE) regulators, making it harder for property owners to argue that a feature is not jurisdictional.
  • Waters that would not be considered WOTUS under the 2015 Rule could be considered WOTUS under the old regulations.  For example, ephemeral ditches that would not be jurisdictional under the 2015 Rule may be considered jurisdiction based on significant nexus under the prior regulations.
  • The distance-based metric for identifying jurisdiction is removed, which may result in a reduction of WOTUS determinations, but this benefit may be outweighed by the lack of clarity that will result from removal of other parts of the 2015 Rule.

Photo Credit: Yokohl Valley (QK Project)

Overall, repeal of the 2015 Rule is likely to lead to a lack of consistency and clarity for project proponents trying to determine if waters on their properties are subject to USACE jurisdiction.

Immediately after this repeal was published in the Federal Register several lawsuits were filed, both to challenge the repeal of the 2015 Rule and to challenge the 1986 interpretation that would come into effect on December 23, 2019. It is possible that the full repeal could be delayed by the courts, though the likelihood of that is low.

If you are working on potential permitting projects that involve the USACE, QK Senior Environmental Scientist Carie Wingert recommends the following:

 Accelerate the permitting efforts for submittal of applications prior to December 23, 2019.

  1. Submit an Approved Jurisdictional Determination request prior to December 23, 2019 if the jurisdictional nature of the waters on-site are questionable.
  2. Conduct a risk assessment for disturbing aquatic features before and after the repeal is in full effect.

Other things to keep in mind:

  • The Regional Water Quality Control Board is requiring confirmation from the USACE that a feature is not a federal WOTUS before issuing Waste Discharge Requirement permits in lieu of 401 Water Quality Certifications.
  • Compensatory mitigation in the Central Valley is expensive and would be required at a 2:1 ratio of credits purchased from the In-Lieu Fee Program as there are no other mitigation options for waters and wetlands available south of San Joaquin County.

 

If you have questions about a project and you would like to discuss, please don’t hesitate to contact Carie Wingert, Senior Environmental Scientist at (559) 449-2400 or Carie.Wingert@qkinc.com.

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