Federal Wetlands Regulatory Program
Wetlands are regulated by the federal government under Section 404 of the Clean Water Act (CWA). The wetlands regulatory program began over forty years ago during the 1970s and is jointly administered by the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps). Over the years, the EPA/Corps have enlarged and expanded the rules governing wetlands and waters of the United States (WOTUS) such federal environmental regulations now intrudes on many real estate development projects that were traditionally only subject to the authority of state and local governments.
The laws and regulations governing wetlands and WOTUS have long been mired in legal disputes, controversy, and litigation. Wetlands rules and regulations remain in a constant state-of-change and are not yet settled law.
The EPA/Corps issued the 2015 CWA Rule, which was intended to resolve long running disputes and conflicts surrounding wetlands and WOTUS, and to facilitate consistency and predictability within the federal wetlands regulatory program. But this did not happen. The 2015 CWA Rule in fact expanded the scope and boundaries of federal regulatory authority. and met strong opposition from the regulated community. The 2015 CWA Rule was subsequently stayed and halted by federal courts and not implemented. The EPA/Corps officially repealed and rescinded the 2015 CWA Rule on Sep. 12, 2019.
The EPA/Corps announced a new rule on Jan. 23, 2020, Navigable Waters Protection Rule (NWPR) that revises the definition of WOTUS in order to clarify the boundaries of federal jurisdiction under the Clean Water Act in a reasonable and understandable way. The NWPR is not yet final but is expected to become a final rule in 2020. When it becomes final, the EPA/Corps would systematically phase-in NWPR through a coordinated and lengthy implementation process.
Certain non-jurisdictional wetlands, ponds, ditches, steams and drainage channels are excluded from regulation under the NWPR. Careful analysis and application of the regulatory parameters, technical definitions, and procedures that are clearly and logically codified in NWPR; enables well-qualified experts and consultants to accurately determine CWA jurisdiction without ambiguity and with much less uncertainty.
Landowners may protect their property rights by investigating and understanding potential wetlands issues, documenting compliance in accordance with NWPR, and avoiding impacts to jurisdictional wetlands and waters of the United States (WOTUS).
The laws and regulations governing wetlands and WOTUS have long been mired in legal disputes, controversy, and litigation. Wetlands rules and regulations remain in a constant state-of-change and are not yet settled law.
The EPA/Corps issued the 2015 CWA Rule, which was intended to resolve long running disputes and conflicts surrounding wetlands and WOTUS, and to facilitate consistency and predictability within the federal wetlands regulatory program. But this did not happen. The 2015 CWA Rule in fact expanded the scope and boundaries of federal regulatory authority. and met strong opposition from the regulated community. The 2015 CWA Rule was subsequently stayed and halted by federal courts and not implemented. The EPA/Corps officially repealed and rescinded the 2015 CWA Rule on Sep. 12, 2019.
The EPA/Corps announced a new rule on Jan. 23, 2020, Navigable Waters Protection Rule (NWPR) that revises the definition of WOTUS in order to clarify the boundaries of federal jurisdiction under the Clean Water Act in a reasonable and understandable way. The NWPR is not yet final but is expected to become a final rule in 2020. When it becomes final, the EPA/Corps would systematically phase-in NWPR through a coordinated and lengthy implementation process.
Certain non-jurisdictional wetlands, ponds, ditches, steams and drainage channels are excluded from regulation under the NWPR. Careful analysis and application of the regulatory parameters, technical definitions, and procedures that are clearly and logically codified in NWPR; enables well-qualified experts and consultants to accurately determine CWA jurisdiction without ambiguity and with much less uncertainty.
Landowners may protect their property rights by investigating and understanding potential wetlands issues, documenting compliance in accordance with NWPR, and avoiding impacts to jurisdictional wetlands and waters of the United States (WOTUS).