The U.S. Environmental Protection Agency (USEPA) has announced a new, more clear definition for what constitutes the “Waters of the United States” or WOTUS. With the Navigable Waters Protection Rule, the USEPA and the Department of the Army finalized a revised definition for WOTUS to protect the nation’s navigable waters from pollution.
The revised definition replaces the 2015 Clean Water Rule: Definition of “Waters of the United States” (WOTUS) Rule and identifies four clear categories of waters that are federally regulated under the Clean Water Act (CWA). These four categories protect the nation’s navigable waters and the core tributary systems that flow into those waters.
Water Federally Regulated Under CWA:
- Territorial seas and traditional navigable waters, like the Atlantic Ocean and the Mississippi River
- Perennial and intermittent tributaries
- Certain lakes, ponds, and impoundments
- Wetlands that are adjacent to jurisdictional waters
This final action also details what waters are not subject to federal control.
Waters Not Federally Regulated Under CWA:
- Water features that only contain water in direct response to rainfall
- Groundwater
- Many ditches, including most farm and roadside ditches
- Previously converted cropland
- Farm and stock watering ponds
- Waste treatment systems
The USEPA says 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 as intended by Congress when it enacted the CWA.
“Our rule takes a common-sense approach to implementation to eliminate that confusion. This rule also eliminates federal overreach and strikes the proper balance between federal protection of our Nation’s waters and state autonomy over their aquatic resources. This will ensure that land use decisions are not improperly constrained, which will enable our farmers to continue feeding our Nation and the world, and our businesses to continue thriving,” says R.D. James, Assistant Secretary of the Army for Civil Works.
The USEPA says that despite prior reports, there are no data or tools to accurately map or quantify the scope of “waters of the United States.” More information, including a pre-publication version of the Federal Register notice and fact sheets, can be accessed on the USEPA website.
A 12-state coalition, led by the State of North Dakota, won a preliminary injunction against WOTUS in 2015. The Supreme Court upheld North Dakota’s position that district courts have jurisdiction to hear challenges to WOTUS. In February 2017, President Donald Trump issued an Executive Order directing the USEPA and the U.S. Army Corps of Engineers (USACE) to review and then rescind or revise the WOTUS Rule. Critics of WOTUS said it was contrary to the Congressional intent of the CWA, and it infringed on the ability of the States to regulate their own natural resources.