The Navigable Waters Protection Rule (NWPR) is in effect as of June 22, 2020. AGC has advocated every step of the way in this multi-year effort and supports the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ new rule. The rule appropriately distinguishes between federal and state waters and should bring greater clarity in the field. AGC provided a summary of the rule when the agencies finalized it in January of this year.
The rule already has several legal challenges in the queue and is on hold in one state. As per a ruling on June 19, 2020, a district court judge granted a preliminary injunction for the State of Colorado. In Colorado, the prior regulatory regime (that has been in place since 1986 and 1988) as well as prior guidance incorporating subsequent U.S. Supreme Court decisions will stay in effect. Earlier that same day, a Northern District of California judge denied a preliminary injunction for the State of California, et al (a case involving 17 states and the District of Columbia). That judge found the plaintiffs had little chance of success based on the merits of the case. At this point, the NWPR remains in effect where the Clean Water Act Section 404 program applies, except for Colorado.
EPA and the Corps issued the final rule on January 23, 2020. Visit EPA’s website for the rule at https://www.epa.gov/nwpr; and the Corps website at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/. Click here to read the preamble to the rule and the regulatory text in the Federal Register.
For more information, contact Melinda Tomaino at Melinda.tomaino@agc.org.