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EPA and Army Publish Final WOTUS Rule

On April 21st, EPA and the Army published the final “Navigable Waters Protection Rule” that defines Waters of the United States (WOTUS) under the Clean Water Act and will become effective on June 22, 2020. This rule is the second step in the two-step process to review and revise WOTUS in accordance with President Trump’s 2017 Executive Order, and will replace the Step One Rule published in October 2019. This new WOTUS includes four categories of jurisdictional waters, provides exclusions for many water features that traditionally have not been regulated, and defines new terms in the regulatory text.

The four categories of federally regulated waters are:

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

Some of the twelve categories of water features excluded from the final rule include:

  • Groundwater, groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters
  • Ephemeral features that flow only in direct response to precipitation
  • Diffuse stormwater runoff and directional sheet flow over upland, and stormwater control features constructed or excavated in upland or in non-jurisdictional waters
  • Ditches and tributaries that are not traditional navigable waters or are not constructed in adjacent wetlands
  • Prior converted cropland and artificially irrigated areas
  • Artificial lakes and ponds that are not jurisdictional impoundments

The final rule also includes information about how the agencies will implement it and how the agencies considered and responded to stakeholder comments and recommendations. For more information, visit the EPA website and read the Federal Register Notice.