Waters of the United States 2020: How to Reduce Project Costs and Expedite Implementation

Spangler Environmental Inc. (SEI) has completed an evaluation of how the definition of Waters of the United States, as stated in the Final Navigable Waters Protection Rule (NWPR), published in the Federal Register on 21 April 2020, and effective on 22 June 2020, changes US Army Corps of Engineers (USACE) and state jurisdiction over and, thereby, permitting for unavoidable impacts to surface water resources in the Southeast. Others have completed analyses of the NWPR’s impact on the extent of waters of the United States (WOTUS), based mostly on empirical (primarily GIS) data and primarily desktop analyses.  While this approach is relevant, it neither adequately considers, nor accurately quantifies changes to 404/401 jurisdiction in the Southeast, as seen on the ground, in the field.  SEI’s analysis considers likely scenarios and real-world results, supported by actual USACE Jurisdictional Determinations.

At the time of the NWPR’s implementation, southeastern states were, with the exception of TN, still operating on the pre-2015 WOTUS definitions/interpretations, which based a surface water resource’s jurisdictional status on the USACE’s interpretation of previous United States Supreme Court rulings, primarily Rapanos v. United States, Carabell v. United States and SWANCC v. United States.  This interpretation/definition involved an analysis methodology that some consider(ed) to be complicated, inconsistent and sometimes difficult to defend.  The NWPR, some practitioners now contend, has simplified and more clearly and consistently defined what is considered WOTUS.

SEI’s first presentation will provide comparisons between the NWPR’s definitions and previous interpretations of the same resource impacts, as well as summarize implications that the changes have on the timeline, cost and difficulty for large and small scale 404/401 permitting, including site development, public infrastructure and mitigation crediting.

Subsequent presentations will address Southeastern states’ jurisdiction of non-WOTUS resources, with an emphasis on North Carolina’s Discharges to Isolated Wetlands and Isolated Waters rule, as well as the proposed changes to NC wetland permitting, which were announced on 22 October 2020.

The recently published proposed changes to the 2017 Nationwide Permits, as well as the proposed USACE Wilmington District’s Regional Conditions, will be also be discussed.  Particular attention and detail will be placed on potential changes to stream impact and mitigation calculations and how that will affect project costs.

Registration is now open for the first webinar in this series:

Part 1: New National Definitions
Thursday, November 12, 2020
1:00pm – 2:00 pm
Speaker: Ward Marotti

Register Now