On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers finalized the Navigable Waters Protection Rule. The purpose of this rule making action is to redefine the term “waters of the United States” (WOTUS). The final rule will become effective 60 days after publication in the Federal Register. Once effective, it will replace the rule published on October 22, 2019.
The revised definition identifies four clear categories of waters that are federally regulated under the Clean Water Act:
- the territorial seas and traditional navigable waters, (e.g., the Great Lakes, Atlantic Ocean, and the Mississippi River);
- perennial and intermittent tributaries, that contribute surface flow to traditional navigable waters in a typical year (e.g., College Creek, which flows to the James River);
- lakes, ponds, and impoundments, of jurisdictional waters (e.g., Lake Travis in Texas); and;
- wetlands that are adjacent to jurisdictional waters.
The final action also identified the waters that are not subject to federal control, including, but not limited to: groundwater; ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools; many ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.
Navigable Waters Protection Rule Replaces 1986 WOTUS Standards
This rule making action is step two of a two-step rule making process. In step one – published on October 22, 2019 – the 2015 Clean Water Rule: Definition of “Waters of the United States” was repealed and the 1986 standards for defining WOTUS were restored. Once effective, the Navigable Waters Protection Rule will replace the 1986 WOTUS standards. This final rule fulfills Executive Order 13788 – directing the EPA to review the 2015 Rule and to interpret the term “navigable waters,” as defined in the Clean Water Act, in a manner consistent with the opinion of Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006).
The agencies intend to disregard all previous guidance and memoranda, particularly the 2003 SWANCC Guidance and the 2008 Rapanos Guidance, as they may create confusion. The agencies intend to develop new guidance documents as specific circumstances arise.
Redefining “waters of the United States” is contentious because it sets the limits of the Clean Water Act’s jurisdiction. The final definition is intended to limit the federal government’s capacity to manage land and water resources that some believe fall within the purview of the states and tribes.
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