The U.S. Environmental Protection Agency and the Department of the Army (Army) finalized the Navigable Waters Protection Rule to define “Waters of the United States” on January 23 and thereby establish federal regulatory authority under the Clean Water Act.
For the first time, the agencies are streamlining the definition so that it includes four categories of jurisdictional waters, provides exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before. Congress, in the Clean Water Act, explicitly directed the agencies to protect “navigable waters.”
The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them. Read the prepublication version of the final Navigable Waters Protection Rule.
Under the final “Step 2” rule, four categories of waters are federally regulated:
- The territorial seas and traditional navigable waters
- Perennial and intermittent tributaries to those waters
- Certain lakes, ponds, and impoundments
- Wetlands adjacent to jurisdictional waters.
The final rule also details 12 categories of exclusions, features that are not “waters of the United States,” such as features that only contain water in direct response to rainfall (e.g., ephemeral features), groundwater, many ditches, prior converted cropland, and waste treatment systems.
The Obama-era WOTUS rule was embroiled in litigation since it was proposed in 2015, as some representing various industries argued it placed too many restrictions on development, while some states were concerned the rule expanded federal jurisdiction to areas that were state responsibilities.
The EPA and Army announced in September 2019 it was repealing the rule. The agencies are also recodifying the longstanding and familiar regulatory text that existed prior to the 2015 rule — ending a regulatory patchwork that required implementing two competing Clean Water Act regulations, which has created regulatory uncertainty across the United States.
The rule continued to exclude groundwater from the definition and proposed not to regulate many wetlands not physically connected to streams or other surface waters. Additionally, it proposed not to regulate stormwater control features and wastewater recycling structures as well as flood-irrigated fields.
NGWA filed comments in April 2019 saying it agreed that groundwater should continue to be regulated by states and noted that in situations where groundwater/surface water interaction needs to be assessed, hydrogeologists have unique expertise that should be utilized. NGWA cautioned the agencies about potential adverse effects a redefinition could have on groundwater quality, specifically regarding stormwater.
Click here to read more about the Navigable Waters Protection Rule.