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Courtesy of the NAA:

The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) have published the Navigable Waters Protection Rule to define “Waters of the United States” in the Federal Register. For the first time, the agencies are streamlining the definition so that it includes four simple categories of jurisdictional waters, provides clear 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 traditional navigable waters and the core tributary systems that provide perennial or intermittent flow into them. Read the final Navigable Waters Protection Rule.

Under the final “Step 2” rule, four clear 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, and
• 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 final rule clarifies key elements related to the scope of federal Clean Water Act jurisdiction, including:

• Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments.
• Refining the proposed definition of “typical year,” which provides important regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry.
• Defining “adjacent wetlands” as wetlands that are meaningfully connected to other jurisdictional waters, for example, by directly abutting or having regular surface water communication with jurisdictional waters.

The Navigable Waters Protection Rule is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with the February 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States.’” This final rule will become effective on June 22, 2020 and will replace the Step One Rule published in October, 2019.

This final action is informed by robust public outreach and engagement on the Navigable Waters Protection Rule, including pre-proposal engagement that generate more than 6,000 recommendations and approximately 620,000 comments received on the proposal. The final definition balances the input the final agencies received from a wide range of stakeholders.