Rapanos is Again the Law of the Land!

In response to the US District Court for the District of Arizona’s 30 August 2021 order, which vacated and remanded the Navigable Waters Protection Rule (NWPR), which became effective on 21 June 2020, over the holiday weekend the EPA formally announced that “…the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.”

What this means in practice is that the “Rapanos” definition of “isolated” wetlands, implemented nationally prior to 2015, has been reinstated nationally (FYI, the “Obama Rule” was implemented in 2015, but “stayed” (i.e. blocked) in 28 states, including NC, SC, GA and FL, before it too was repealed nationally in 2019).  It is SEI’s opinion that for permitted projects that have “broken ground” or can be documented to have begun in good faith, via financial or other non-severable commitment, the NWPR’s waters of the United States (WOTUS) definition will not be questioned.  For permitted projects that have not begun and/or sites with currently valid Approved Jurisdictional Determinations that document features’ lack of jurisdictional status (i.e. not WOTUS), the USACE will require additional documentation to demonstrate that a feature is “isolated,” as defined using the Rapanos methodology.

Because of the differences in the pre-2015  (Rapanos) and NWPR definitions, some features that were considered non-jurisdictional under the NWPR, will now be WOTUS using the Rapanos (pre-2015) method.

If you have particular projects that you would like Spangler Environmental to evaluate – we can help! If you would like to further discuss, via phone and/or virtual meeting, please email Ward Marotti (ward@spanglerenvironmental.com).