EPA's Navigable Waters Protection Rule Defines Waters of the U.S.
The Navigable Waters Protection Rule redefines the WOTUS definition to help states and industry clarify what is included and not included in the new rule.
EPA and the U.S. Army have finalized their definition of the Waters of the United States (WOTUS) through a new final rule called the Navigable Waters Protection Rule.
The definition of WOTUS has been at the point of contention between regulators, industry and environmental groups since the Clean Water Act amendment in 2015. The definition has been at the heart of a number of legal battles, and an item of regulatory enforcement uncertainty.
What is Included?
Once proposed as six categories, the final rule was narrowed to four major categories of waters to be included: Territorial Seas and Traditional Navigable Waters, Tributaries, Lakes Ponds and Impoundments of Jurisdictional Waters, and Adjacent Wetlands.
What is NOT Included?
The below are not included as long as they do not meet the above definitions: Groundwater, Ephemeral features, Stormwater, Farm and roadside ditches, Prior converted cropland, Artificially irrigated areas, Artificial lakes and ponds, Water-filled depressions incidental to construction or mining, Groundwater recharge structures, and Waste treatment systems.
What Really Matters: What Are Your Local Laws?
The Navigable Waters Protection Rule defines the requirements of federal law. However, some states like California have developed their own regulations and definitions that are stricter and the federal law allows for that. Be aware of what’s required locally, and that’s the rule you’ll need to follow.
Frequently Asked Questions
Q: What are the four major categories of waters included in EPA’s Navigable Waters Protection Rule?
The final Navigable Waters Protection Rule defines Waters of the United States (WOTUS) to include four major categories: Territorial Seas and Traditional Navigable Waters, Tributaries (streams and rivers with a hydrologic connection), Lakes, Ponds and Impoundments of Jurisdictional Waters, and Adjacent Wetlands. This definition resolves previous regulatory uncertainty about WOTUS jurisdiction.
Q: Which water features are explicitly excluded from the Navigable Waters Protection Rule?
Waters excluded from WOTUS jurisdiction include groundwater, ephemeral features, stormwater, farm and roadside ditches, prior converted cropland, artificially irrigated areas, artificial lakes and ponds, water-filled depressions from construction or mining, groundwater recharge structures, and waste treatment systems, unless they meet one of the four inclusion categories.
Q: Can states establish different or stricter WOTUS definitions than the federal rule?
Yes, states may establish their own regulations and definitions that are stricter than federal law. For example, California has developed its own WOTUS standards that exceed federal requirements. Companies must comply with both federal requirements and applicable state standards, following the most restrictive requirement.
Q: Why has the WOTUS definition been controversial?
The WOTUS definition has been contentious because it determines which waters require Clean Water Act permits for discharges, directly affecting compliance costs and requirements for industry. Previous definitions created regulatory uncertainty through multiple legal battles and inconsistent interpretation across regions and administrations.
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