EPA’s Final Rule

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:

  • territorial seas and traditional navigable waters;
  • tributaries;
  • lakes, pond, and impoundments of jurisdictional waters; and
  • adjacent wetlands.

EPA also finalized 12 exclusions from the definition of WOTUS, including eight that were critical to the building industry and addressed in our comments:

  • groundwater, including groundwater drained through subsurface drainage systems;
  • ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools;
  • diffuse stormwater runoff and directional sheet flow over upland;
  • ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations;
  • water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
  • stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
  • groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and
  • waste treatment systems.

The other exclusions from the definition of WOTUS that may also be of interest are:

  • any waters or features not mentioned in the four categories included in the definition WOTUS;
  • artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters;
  • prior converted cropland; and
  • artificially irrigated areas that would revert to upland if artificial irrigation ceases.

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.