Approved by the Energy, Environment, and Water Policy Committee on February 17, 2022
Approved by the Public Policy and Practice Committee on April 27, 2022
Adopted by the Board of Direction on July 22, 2022
The American Society of Civil Engineers (ASCE) supports the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) in maintaining regulations that protect national wetlands and enforcing clearly defined wetlands subject to jurisdictions under Section 404 of the Clean Water Act (CWA). ASCE supports a final rule that:
- Maintains federal jurisdiction over all interstate and navigable waters, their tributaries, and all adjacent wetlands.
- Clarifies state jurisdiction over isolated, non-navigable intrastate waters and adjacent wetlands, (including vernal pools, playas, and prairie potholes), that is based on environmental and wildlife regulations promulgated by the Department of the Interior or the EPA.
- Provides clarity on federal jurisdiction over intermittent and ephemeral streams and their adjacent wetlands under section 404 to the USACE, in coordination with the EPA.
- Provides clarity on the level of government having jurisdiction over specific waters.
To ensure that wetland issues are properly addressed in a timely and predictable manner during the project development process, it is important that the level of government having jurisdiction - federal or state - be clearly identified. The EPA and USACE use the 1987 Corps of Engineers Wetlands Delineation Manual and Regional Supplements to define wetlands for the CWA Section 404 permit program. Section 404 requires a permit from USACE or authorized state agency for the discharge of dredged or fill material into Waters of the United States (WOTUS), including wetlands. The 2020 Navigable Waters Protection Rule to Define “Waters of the United States” was published as a final rule on April 21, 2020. On January 20, 2021, Executive Order 13990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) ordered a review of the Navigable Waters Protection Rule. On June 9, 2021, USACE and EPA announced plans to formally repeal the Navigable Waters Protection Rule and revise the WOTUS definition from 2020.
On August 30, 2021, the U.S. District Court for the District of Arizona vacated the Navigable Waters Protection Rule. Following the ruling, USACE and EPA halted further implementation of the Navigable Waters Protection Rule and currently adheres to the definition of WOTUS observed prior to 2015. On December 7, 2021, USACE and EPA published the current proposed rule titled Revised Definition of “Waters of the United States”. The proposed rule interprets the definition of Waters of the United States as those waters “defined by the familiar 1986 regulations, with amendments to reflect the agencies’ determination of the statutory limits of the “waters of the United States” informed by Supreme Court precedent.”
Under the 2021 proposed rule, WOTUS is defined as: “Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and “other waters” that meet either the relatively permanent standard or the significant nexus standard.”
Rescinding of the Navigable Waters Protection Rule would remove the categorical exclusion of ephemeral waters from CWA jurisdiction and provide greater authority to determine jurisdiction over ephemeral waters on a case-by-case basis. The proposed rule would also define as WOTUS wetlands that are adjacent to navigable waters, and those wetlands that are adjacent to wetlands and tributaries that meet the standards established by the Supreme Court under Rapanos.
In the absence of a revised Clean Water Act, the inclusion of all wetlands and ephemeral streams in WOTUS is needed to enable resilient and more cost-effective approaches to protection of our waters. A balanced solution requires the inclusion of headwaters, wetlands, ephemeral streams, and groundwaters. Civil engineers have an overall responsibility to advance implemental policy that is effective in protecting the natural and manmade environment. In light of recent changes to regulation, civil engineers are often engaged in permitting actions.
ASCE Policy Statement 378
First Approved in 1991