Trump Administration issues Navigable Waters Protection Rule

U.S. Environmental Protection Agency Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James on Jan. 23 announced a new definition for “waters of the United States” (WOTUS).

The EPA said that The Navigable Waters Protection Rule “ends decades of uncertainty over where federal jurisdiction begins and ends” and that for the first time, the EPA and the Army are recognizing the difference between federally protected wetlands and state protected wetlands.

Under the final rule, four categories of waters are federally regulated: (1) The territorial seas and traditional navigable waters; (2) Perennial and intermittent tributaries to those waters, (3) Certain lakes, ponds, and impoundments, and (4) Wetlands adjacent to jurisdictional waters.

The final rule also details 12 categories of exclusions, features that are not WOTUS, 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 EPA said that the final rule also 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; and
  • 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 WOTUS, consistent with the February 2017 Presidential Executive Order, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States.’

The final rule will become effective 60 days after publication in the Federal Register and will replace the Step One Rule published in October 2019.

Association welcomes clarity of new rule

“Public power welcomes the clarity that the new Navigable Waters Protection Rule brings in reasonably defining ‘federal waters,’” the American Public Power Association said in response to the Jan. 23 announcement from the EPA and the Army Corps of Engineers.

“Public power utilities look to the federal government to facilitate expedient permitting of infrastructure projects to continue powering the U.S. with reliable, affordable, and environmentally responsible power. This rule will certainly improve this process,” the Association said.

“The new rule also brings the clarity and certainty needed for the electric sector to utilize waste treatment systems to protect downstream water quality and recycle and reuse water at generating sites,” the Association said.

Webcast scheduled for Feb. 13

The EPA and the Army will hold a public webcast to help explain the key elements of the final Navigable Waters Protection Rule on Feb. 13. To register for the webcast, click here.

Additional information about the action including a pre-publication version of the Federal Register notice is available here.