EPA, Army finalize Navigable Waters Protection Rule to define WOTUS

The U.S. Environmental Protection Agency and Department of the Army have finalized the Navigable Waters Protection Rule, which defines “waters of the United States.”

The agencies say they 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.

The four categories of waters that are federally regulated under the Clean Water Act are: the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands that are adjacent to jurisdictional waters. This final action also details what waters are not subject to federal control.

EPA also says the final definition achieves the proper relationship between the federal government and states in managing land and water resources. The Navigable Waters Protection Rule respects the primary role of states and tribes in managing their own land and water resources. All states have their own protections for waters within their borders and many already regulate more broadly than the federal government. This action gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters.

“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” said EPA Administrator Andrew Wheeler. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”

Congress, in the Clean Water Act, 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.

For hydropower generation, Sen. Lisa Murkowski (R-Alaska) explained well the potential impact of the previous WOTUS rule: “Alaska has nearly 300 prime locations for hydro development, nearly 200 in southeast Alaska alone,” Murkowski said in a 2015 Senate address. “But, many of them require the construction of powerhouses or transmission lines that may rest on wetlands or cross wetlands as defined by the new rule, and that’s now a big problem.”

EPA says the final rule fulfills Executive Order 13788 and reflects legal precedent set by key Supreme Court cases, as well as robust public outreach and engagement, including pre-proposal input and comments received on the proposed rule.

The final rule will become effective 60 days after publication in the Federal Register. Once effective, it replaces the rule published on Oct. 22, 2019. Click here to learn more.

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