The Environmental Protection Agency and the Army Corps of Engineers recently finalized the rule that define “waters of the United States” (WOTUS) under the Clean Water Act, the Navigable Waters Protection Rule.
The EPA and the Corp released its proposed rule in December. At the time, the agencies said the proposal was the second in a two-step process to review or revise the definition of WOTUS in accordance with a February 2017 executive order signed by President Donald Trump. The first step was the repeal in September of the EPA’s 2015 rule defining WOTUS. After repeal of 2015 rule, the definition of WOTUS defaulted to the prior regulatory definition.
The publication of the rule (85 FR 22252) in the Federal Register begins the clock ticking for the Navigable Waters Protection Rule to go into effect on June 22.
The new regulation defines WOTUS to include four categories of jurisdictional waters: (1) territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands).
The final rule also includes 12 exclusions and features that are not considered jurisdictional under the Clean Water Act.
The agencies did not modify the definition of “traditional navigable waters” because they said it had been established in the regulatory text for decades, but they did clarify that the standard of “use in interstate commerce” needs to be more than “being able to float a boat” and requires the physical capacity, actual or potential, for “commercial navigation.”
Tributaries, lakes, ponds and impoundments are defined as contributing a surface flow of water to traditional navigable waterways in a typical year, defined as a 30-year rolling average of relevant hydrological data.
Under the new rules, wetlands are jurisdictional if they are truly adjacent to traditional navigable waters or are inundated by flooding by traditional navigable waters in a typical year. Wetlands separated from jurisdictional waters by a natural berm, bank, or dune are also adjacent, as are wetlands physically separated from jurisdictional waters by an artificial barrier, if the barrier allows for a direct hydrologic surface connection in a typical year.
Of particular note to electric utilities is the definition of waste treatment system (WTS) under the new rule. The final rule maintains and codifies the longstanding exclusion for waste treatment systems. The new WTS exclusion defines the systems that qualify for the exclusion and confirms that features need not perform “active” treatment to qualify for the exclusion.
Under the new rules, a waste treatment system includes lagoons and treatment ponds used to treat pollutants from wastewater or stormwater prior to discharge. Ephemeral features that contain surface water flow or pooling only in direct response to precipitation are not considered WOTUS under the new rules.
The final rule also clarifies that most ditches are not jurisdictional under the Clean Water Act, nor are groundwater, artificial lakes and ponds, stormwater control features, or wastewater recycling features.