Wetland Wednesday
April 15, 2020
I thought I would give you an update on the Navigable Waters Protection (NWP) Rule. It remains unpublished in the Federal Register. The COVID 19 pandemic has most certainly derailed the publication process. However, other rules are getting published. Perhaps it may never get published. I sort of doubt it, but who knows. If EPA wanted to slip this one in while nobody was looking now would be the time. Perhaps this is in the spirit of the recent announcement that EPA would be scaling back enforcement of environmental regulations during the pandemic.
On the flip side there are also no active court cases against the new NWP rule. You cannot object to a rule that is not published. There are several pending cases just waiting for the day that it is published. Specifically, a New York Federal judge had recently informed a group of landowners that they cannot show that they have been harmed by the new rule if it has not gone into effect yet.
I suspect that the new rule will be published shortly after things start to open again. The administration had timed this to generate news well before the election. Delays to the NWPR publication would only bring this to mind closer to election day. It is not a very popular rule and suspect the Administration would want the controversy to blow over before election day. However, it was a promise made to the farm community, so I do not see it going away entirely or at all.
In the meantime, we are still working under the current revised Waters of the US definition. This temporary regulation went into effect in December 2019. In essence it rolls back the Obama era Clean Water rule and replaces it with the pre-existing set of regulations. Essentially, the old Kennedy test for significant nexus is needed to determine if a wetland is a waters of the US.
The biggest change to the regulations as a result of the new rule is the definition of adjacent wetlands. The old rule required a significant nexus test if the wetland did not directly abut a navigable waterway or its tributaries. The new NWP rule requires that all wetlands directly connect to a navigable water or its tributaries. In essence, what we used to call abutting wetlands are now adjacent wetlands. I really wish they used a different name. The concept of adjacent wetlands has a long history in the courts and I only see this adding to the confusion. Perhaps they should call them Trump wetlands? He would probably like that.