Legal Updates

UPDATE:  The Final Navigable Waters Protection Rule was published in the Federal Register on April 21, 2020, and will become effective on June 22, 2020.

Original post:  The Environmental Protection Agency has finalized the Navigable Waters Protection Rule, adopting a new definition for “waters of the United States” after the repeal of the Obama-era Waters of the United States Rule in September of last year. The repealed Obama-era rule had defined “waters of the United States” as interstate waters, territorial seas, impoundments of jurisdictional waters, covered tributaries and covered adjacent waters. The newly adopted definition reduces these types of waters/wetlands subject to
federal jurisdiction.

Under the new Rule, the term “waters of the United States” will encompass the territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters.

The Rule specifies that the following waters, among others, are excluded from the definition and are therefore non-jurisdictional:

• groundwater;
• ephemeral features that flow only in direct response to precipitation;
• diffuse stormwater runoff and directional sheet flow over upland;
• ditches that are not traditional navigable waters, tributaries or constructed in adjacent wetlands;
• prior converted cropland;
• artificially irrigated areas that would revert to upland if artificial irrigation ceases;
• artificial lakes and ponds constructed upland that are not jurisdictional impoundments;
• water-filled depressions or pits constructed in upland or in non-jurisdictional waters (related to mining, construction or fill);
• stormwater control features constructed in upland or in non-jurisdictional waters;
• groundwater recharge, water reuse and wastewater recycling structures constructed in upland or in non-jurisdictional waters; and
• waste treatment systems.

The new Rule was triggered by U.S. Supreme Court cases United States v. Riverside Bayview Homes (Riverside Bayview), Solid Waste Agency of Northern Cook County v. United States (SWANCC), and Rapanos v. United States (Rapanos), as well as Executive Order 13778, signed on February 28, 2017, entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

Signed by Administrator Andrew R. Wheeler and Assistant Secretary of the Army for Civil Works, R.D. James on January 23, 2020, the Rule will be submitted for publication in the Federal Register and will become effective 60 days thereafter.

For a discussion of the earlier steps taken in this process, please see our September 2019 blog  EPA Redefines Waters of the U.S. - Again - In Bid to Promote Regulatory Consistency.