By: Nicholas W. Scala and Beeta Lashkari

On Monday, June 22, 2020, the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“the Army Corps”) revised “Navigable Waters Protection Rule” (“NWPR”) took effect in most parts of the country, commonly referred to as the WOTUS rule.  The rule repeals and replaces an Obama Administration regulation further defining what constitute jurisdictional “waters of the United States” (“WOTUS”) and codifies a new and more narrow definition of the regulated areas.

The WOTUS rule has had a long and tortured history, starting with the EPA’s significant expansion of the definition of WOTUS under the Obama Administration in June 2015.  See our previous blog post for more details on the history of the WOTUS rule.  Under that version of the rule, nearly all bodies of water could be construed to constitute a WOTUS for jurisdictional purposes under the Clean Water Act, even if a temporary puddle following a heavy rain. This significantly impacted the ability of mining companies to obtain and maintain compliance with environmental permits. The current NWPR pulls back on those expansions, offering a more streamlined approach to determining whether a body of water is a WOTUS.  After years of litigation and lobbying by numerous industry groups and organizations, the revised NWRP is much less burdensome to the mining industry and is a major win in challenging regulators’ sometime unfettered authority.

Specifically, the NWPR redefines WOTUS to categorically regulate four main types of waters:

(1) the territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters that are subject to the ebb and flow of the tide (collectively, referred to as “traditional navigable waters”);

(2) tributaries;

(3) lakes, ponds, and impoundments of other jurisdictional waters; and

(4) wetlands adjacent to other waters of the United States.

The new NWPR also expressly excludes twelve types of waters from regulation.  Importantly, among those exclusions is ephemeral waters, which are defined as water features that only flow in response to precipitation events such as rain and snowmelt.  The NWPR eliminates these features from regulation.

This exclusion is particularly significant given the nature of the mining and how active quarries or pits handle the accumulation of water, such as when parts of quarries will inevitably fill with water and/or flood during/after rain and snow. It is important to note, however, that the rule make clear that a jurisdictional tributary (which must be perennial or intermittent in a typical year) will remain a jurisdictional water if it flows through a non-jurisdictional feature, such as a ditch, ephemeral stream, or subterranean river.  Additionally, the rules states that “certain ephemeral features do not sever jurisdiction of an upstream relatively permanent jurisdictional water so long as they provide a surface water connection to a downstream jurisdictional water in a typical year.”

So, although ephemeral waters are for the most part excluded, there are certain circumstances under which they are under or can implicate jurisdiction.

What’s Next? 

Now that the rule is in effect, the mining industry can rest assured (or at least, have a greater sense of relief) that their environmental permits will not be subject to overly burdensome regulation for the time being. However, just as industry challenged the Obama era regulation (and won), currently environmental interest groups and states are challenging this new Trump Administration NWPR. As a result of recent litigation, a decision from Colorado stayed the effective date of the new NWPR in the state.

Last Friday, June 19, 2020, the federal district court for the District of Colorado issued a preliminary injunction pending a review of the state’s claim that the EPA and Army Corps violated the Administrative Procedure Act (APA) in finalizing the rule (which governs federal rulemaking).  So, if you operate in Colorado, the new NWPR does not apply.

Indeed, a coalition of states made a similar argument as the state of Colorado and lost in the federal district court for the Northern District of California on the same day.  The coalition is expected to appeal.  In addition to those proceedings, environmental groups have filed complaints seeking to overturn the NWPR in district courts in Massachusetts, Maryland, and South Carolina, contending that the rule’s redefinition of WOTUS is arbitrary and capricious, again under the APA.

While mine operators (outside of Colorado) can celebrate the new NWPR as a victory after championing the challenge of the Obama definition for years, we will have to continue monitoring the various legal challenges throughout the country, meaning the current definitions may one day change again.