In today’s Federal Register (Final WOTUS Definition_Fed Reg_2020-04-21), EPA and the US Army Corps of Engineers (ACOE) published the final revised definition of Waters of the United States (WOTUS) under the Clean Water Act. The revised definition is being referred to as the “Navigable Waters Protection Rule.” Sixty days after publication in the Federal Register (June 22, 2020) the revised WOTUS definition will go into effect.
The revised WOTUS definition describes the following four categories of waters to be regulated under the Clean Water Act.
- The territorial seas and traditional navigable waters,
- Perennial and intermittent tributaries to those waters,
- Certain lakes, ponds, and impoundments, and
- Wetlands adjacent to jurisdictional waters.
The revised WOTUS definition excludes the following categories from regulation under the Clean Water Act:
- 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;
- prior converted cropland;
- artificially irrigated areas that would revert to upland if artificial irrigation ceases;
- artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters;
- 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.
In 2015 EPA and the Army adopted revisions to the definition of WOTUS under the Clean Water Act (the revisions were referred to as the Clean Water Rule). Almost immediately, the Rule was challenged in court and implementation was halted in a number of States. In March 2017 EPA and the ACOE indicated their intent to rescind or revise the Clean Water Rule. In October 2019 EPA and the ACOE published “…a final rule to repeal the 2015 Clean Water Rule definition of Waters of the United States….and to restore the regulatory text that existed prior to the 2015 Rule.” Today’s publication of the final WOTUS definition will replace the rule published in October 2019.