The Navigable Waters Rule and Subsurface Flows
From EHS Daily Advisor, William C. Schillaci
According to the U.S. Army Corps of Engineers, the Navigable Waters Rule (NWR), issued by the Corps and the EPA, will effectively remove 51% of the Corps’s mapped wetlands from federal jurisdiction under the Clean Water Act (CWA). Much of that eliminated inventory was subject to federal protection under the Obama administration’s 2015 Clean Water Rule (CWR), which, like the NWR, provided a definition for Waters of the United States (WOTUS), a critical term in the CWA yet one the Congress failed to define.
The Trump administration repealed the CWR in September 2019 and restored the regulatory regime that existed before its finalization.
One significant change between the two rules that will impact federal jurisdiction over wetlands relates to subsurface flows (or connections or features).
Image caption: Wetlands at sunset, from Wikipedia Commons.
