Update on Navigable Waters Protection Rule

In our opinion, the most drastic change resulting from this proposed rule is the reduction in jurisdictional limits that would come with the Army no longer regulating ephemeral waters. This also brings the challenge of determining whether or not a stream is ephemeral or intermittent. These determinations often rely on streamflow-duration assessment methods (SDAMs) which have been developed across much of the country, but are generally lacking for Texas. The proposed rule is currently in a pre-publication draft, and is expected to be published in the Federal Register this month. The final rule will become effective 60 days after publication in the Federal Register. There is also a strong likelihood that lawsuits will be brought against the rule, which could result in a stay of its implementation. Based on these developments, we recommend continuing to evaluate projects for Waters of the United States based on current standards, but collecting data that can also be applied to the new rule, once implemented. Additional information can be found at: https://www.epa.gov/nwpr