Last week, the EPA released a new, clear definition for “Waters of the United States” (WOTUS) with the announcement of the Navigable Waters Protection Rule, which aims to end uncertainty over the extent of federal jurisdiction relating to the Clean Water Act. Under the new rule, the agency and the Department of the Army will now draw a distinction between federally protected and state protected wetlands.
The revised definition identifies four clear categories of waters that are federally regulated under the Clean Water Act: territorial seas and navigable waters (i.e. the Atlantic Ocean, the Mississippi River); perennial and intermittent tributaries, certain lakes, ponds and impoundments, and wetlands adjacent to jurisdictional waters. The intent is to protect the nation’s navigable waters as well as the core tributary systems that flow into said waters.
The new rule additionally clarifies which waters are not subject to federal control. These include features that only contain water after rainfall, groundwater, ditches including most farm and roadside ditches, converted cropland, farm and stock watering ponds, and waste treatment systems.
According to the EPA press release, “The agencies’ Navigable Waters Protection Rule respects the primary role of states and tribes in managing their own land and water resources. All states have their own protections for waters within their borders and many already regulate more broadly than the federal government. This action gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.”