|Yesterday, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) released a pre-publication version of its final rule defining the scope of waters federally regulated as “waters of the United States” (WOTUS) under the Clean Water Act (CWA). EPA also published several fact sheets and a press release, which are available here.
The Final Rule
EPA’s final rule, titled “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’” recognizes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated under the CWA, and defines terms in the regulatory text that had not previously been defined.
EPA considers the following four categories of waters as WOTUS:
EPA also finalized 12 exclusions from the definition of WOTUS, including eight that were critical to the building industry and addressed in our comments:
The other exclusions from the definition of WOTUS that may also be of interest are:
Importantly, the final rule comports with the text and structure of the CWA, as informed by its legislative and Supreme Court guidance. It presents a unifying legal theory for federal jurisdiction over those waters and wetlands that maintain a sufficient surface water connection to traditional navigable waters or the territorial seas. Additionally, the final rule appropriately considers the cooperative federalism framework outlined in the CWA and draws clear lines between state and federal waterways. This clear delineation will provide operators and those in other industries the regulatory certainty and clarity needed to make confident business decisions.