Bed, Bank, and Beyond

The definition of waters of the U.S. (WOTUS) has long been a source of confusion, particularly in the arid Southwest where the question of federal jurisdiction over dry desert washes has remained largely unresolved for decades. In 2015, the Corps and the EPA attempted to clarify the definition of WOTUS and proposed a new rule that would have asserted federal authority over all ephemeral streams. Since its founding, WestLand has been a recognized leader in Clean Water Act permitting and WOTUS determinations, and two of our experts, Jim Tress and Brian Lindenlaub, were approached by Environment and Energy Publishing to weigh in on the new rule.

The 2015 Clean Water Rule was formally rescinded in 2019 and a new rule, the Navigable Waters Protection Rule (NWPR), is anticipated to be published in Q2 2020. While the new rule purports to provide clarity on the definition of WOTUS, and explicitly excludes ephemeral washes from federal jurisdiction, there remain a number of questions around WOTUS that may affect projects in the near term. One of the questions of primary concern is whether or not the NWPR will be enjoined, as the 2015 Clean Water Rule was. As we’ve done for over 20 years, WestLand’s team of experts can provide planning support for your projects to mitigate the risks of an uncertain regulation.

Environment and Energy Publishing, October 15, 2014. Link to article below.