EPA and Army Announce Navigable Waters Protection Rule

EPA has issued a news release stating that EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James will announce a new definition for waters of the United States (WOTUS) with the promulgation of the Navigable Waters Protection Rule. A prepublication version of the rule is now available and the final rule will be effective 60 days after being published in the Federal Register.

The news release explains that the revised definition of WOTUS identifies four categories of waters that are federally regulated under the Clean Water Act:

• Territorial seas and traditional navigable waters
• Perennial and intermittent tributaries
• Certain lakes, ponds, and impoundments
• Wetlands that are adjacent to jurisdictional waters

The revised definition also describes waters that are not subject to federal control including:

• Features that only contain water in direct response to rainfall
• Many ditches including most farm and roadside ditches
• Prior converted cropland
• Farm and Stock Watering Ponds
• Waste treatment systems

The pre-proposal public outreach generated more than 6,000 recommendations and approximately 620,000 comments from a wide range of stakeholders.

Most news sources anticipate environmental groups will challenge the new rule resulting in a regulatory patchwork that puts the rule on hold in some states but effective in others as was the case with different district court decisions about the 2015 Definition of WOTUS rule during the Obama administration. A final resolution may require the Supreme Court to decide.