In the April 21, 2020 edition of the Federal Register, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers published the Navigable Waters Protection Rule. The purpose of this rulemaking action is to redefine the term “waters of the United States” (WOTUS). The final rule will become effective June 22, 2020. Once effective, it will replace the rule published on October 22, 2019.
The rule redefines which waters can be regulated by the Clean Water Act (CWA). Its net effect is to decrease the types of waters regulated by the Clean Water Act, potentially allowing regulated entities to discharge waste water or build on waters that previously required permits or where such activities were prohibited.
Revised Definition of Federally Regulated Waters
The revised definition identifies four clear categories of waters that are federally regulated under the Clean Water Act:
- 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)
- 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:
- Land features that contain water solely as a result of rainfall
- Many ditches
- Prior converted cropland
- Farm and stock watering ponds
- Waste treatment systems
Two-Step Rulemaking Process
This rulemaking action is step two of a two-step rulemaking process. In step one, published on October 22, 2019, the EPA repealed the 2015 Clean Water Rule: Definition of “Waters of the United States” and restored the 1986 standards for defining WOTUS. Once effective, the new Navigable Waters Protection Rule will replace the 1986 WOTUS standards.
This final rule fulfills Executive Order 13788, which directed the EPA to review the 2015 Rule and 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 definition of “waters of the United States” is contentious because these waters fall within the jurisdiction of the Clean Water Act. Any “discharge of a pollutant” from a “point source” to a “water of the United States” is subject to regulation via the Clean Water Act. It is thereby prohibited without a National Pollution Discharge Elimination System (NPDES) permit.
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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