The Agency Charged With Implementing It Will Encounter New Policy Considerations And May Struggle With Consistency In Decision-Making.
By Coty Hopinks-Baul
On June 22, 2020, the Trump administration’s Navigable Waters Protection Rule (NWPR), which redefined the scope of waters regulated under the Clean Water Act, became effective nearly nationwide. And while it has been challenged by various states and non-governmental organizations, the rule has been stayed only in Colorado. It may be a few years before we know whether the NWPR will ultimately be upheld but, at the moment, there is reason to hope that the implementation of the new rule may result in programmatic improvements that are long overdue.
As any new rule rolls out, the agency charged with implementing it will encounter new policy considerations and may struggle with consistency in decision-making across various states or district offices. For this rule, two agencies share responsibility for the rule, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), therefore, the likelihood of inconsistent decision-making and other bumps in rule implementation multiply. Adding further complexity, both EPA and the Corps have developed jointly and separately a large body of guidance documents. It is important to be aware which former guidance the agencies have opted to retain and this article will discuss how EPA and the Corps plan to implement the NWPR.
To facilitate the implementation of the NWPR, EPA and the Corps have issued a number of fact sheets and joint memoranda and have developed training materials. In addition to providing a framework for how the agencies will exchange information and coordinate decision-making, these implementation memoranda and training materials, along with the preamble to the final rule, provide the regulated community with valuable insights on how the agencies will interpret the applicability of various categories of jurisdictional and non-jurisdictional waters under the new rule.
The Coordination Memo
In the “Memorandum to the Field on Coordination to Ensure Consistent Implementation of the Navigable Waters Protection Rule,” dated Aug. 5, 2020, the agencies outline a framework by which they will communicate to resolve novel jurisdictional policy questions, review draft jurisdictional determinations (JD) or decisions, reach a decision where there is disagreement among the agencies, and conduct hindsight reviews of both the Corps’ final approved JD and EPA’s decisions in appeals relating to jurisdictional issues.
This coordination memo requires the agencies to establish a process for reviewing final decisions in appeals of JDs and permitting decisions entailing jurisdictional issues. The purpose of these reviews will be “to look for technical issues that are brought to light as part of the appeal and how Districts across the country are handling these issues.”
The coordination memo also provides that the agencies will review on a semi-annual basis a representative sampling of both Corps and EPA decisions “to provide the agencies an opportunity to identify any challenges that can be addressed through more targeted training, guidance, and/or coordination.” Initially at least, the agencies will review a minimum of 200 decisions/determinations, which will include both those in which jurisdiction is asserted and found lacking for specific exclusions that “have certain new aspects compared to the agencies’ prior practice” – e.g., ephemeral features, ditches, prior converted cropland, and artificial lakes and ponds constructed or excavated in uplands or in non-jurisdictional waters.
Finally, the agencies are required to elevate and coordinate decision-making for certain draft JDs – i.e., where a negative jurisdictional decision is premised solely on the absence of flow to a downstream jurisdictional water during a typical year, and where an affirmative jurisdictional decision is based only on a finding that certain downstream waters are “inundated by flooding from a jurisdictional water in a typical year.” Interagency coordination is not required for “any other types of draft approved JDs under the NWPR.”
Notably, however, each of the three review processes identified in the coordination memo will cease after three semi-annual reviews.
Other Technical Implementation Memoranda
The agencies’ implementation memoranda also require interagency coordination for affirmative jurisdictional decisions for traditionally navigable waters where jurisdiction is premised on a water body’s susceptibility to use in recreation-based commerce and waters where both indicia of jurisdiction and exclusion from jurisdiction are present; provide guidance on the applicability of the ditch exemptions; and provide guidance on coordinating with the USDA on the exclusion for prior converted cropland.
Fact Sheets and Training Materials
In addition to the implementation memoranda identified above, the agencies have also developed fact sheets and (recorded) training sessions to provide guidance on the definition and application of key terms such as “typical year,” as well as criteria relevant to exclusions and classifications relating to flow regimes and water bodies such as lakes, ponds, impoundments, and adjacent wetlands. The training session slides contain photographic examples and other nuggets of information about how the agencies interpret and apply these terms and classifications – for example, under the NWPR a change in use analysis will not be used to determine whether an area qualifies for prior converted cropland exclusion. These materials also identify the pre-NWPR guidance that the agencies will continue to follow.
Utility of Implementation Materials
The training materials and preamble developed by the Corps and EPA provide interpretive information that may allow producers to have a better initial sense of the jurisdictional status of a water body. Producers should review the training materials, fact sheets, and implementation memoranda to understand changes in the agencies’ interpretations, gauge potential permitting requirements for new or expanded operations, and to determine whether they may benefit from requesting a new JD for a previously assessed site.
The agencies also suggest that additional mapping tools for ascertaining a water body’s jurisdictional status may be developed down the line. However, even if a database compiling information about of the streams, wetlands, and other water bodies regulated under Clean Water Act does not materialize, the agencies’ implementation memoranda provide an important immediate benefit: a framework under which EPA and the Corps can elevate and jointly review certain JDs, as well as review final approved JDs and permitting appeals. Such a framework may result in improved consistency (and predictability) across and within both agencies and their various regional or district offices – that, in itself, would be a welcome development.
Coty Hopinks-Baul is senior counsel at Husch Blackwell LLP. She concentrates her practice in the area of environmental law and advises clients on permitting and enforcement defense, environmental, safety and health compliance, and environmental liabilities in commercial transactions. She can be reached at [email protected].