EPA and Army Corps of Engineers Give New Waters of the U.S. Definition

The Environmental Protection Agency and Army Corps of Engineers today issued a final rule with a new definition of “Waters of the United States” that are protected by the Clean Water Act. The rule finalizes a proposed rule that was issued in December 2018, and it narrows the scope of Clean Water Act jurisdiction. The final rule is scheduled to take effect 60 days after it is formally published in the Federal Register, which can come at any time.

The rule will have broad implications for public agencies and private property owners. The most significant changes in the final rule are:

• Ephemeral streams and other features will be excluded from Clean Water Act jurisdiction. This change will be especially impactful in the arid West, where the majority of water features are ephemeral.
• Wetlands will be excluded from Clean Water Act jurisdiction unless they have a direct surface connection to a Water of the United States, or they are only separated from a Water of the United States by a natural berm or bank. This will exclude a significant percentage of wetlands from Clean Water Act jurisdiction.
• Artificial lakes and ponds, water storage reservoirs, stormwater control features, and groundwater recharge facilities will be excluded from Clean Water Act jurisdiction if they were not built in Waters of the United States.
• Ditches will be excluded from Clean Water Act jurisdiction unless they are constructed in a Water of the United States.

The final rule, which the agencies have called the “Navigable Waters Protection Rule,” replaces the 2015 “Clean Water Rule” that was issued by the Obama Administration and then repealed in December 2019.

More information will be coming soon as we further analyze the final rule and its explanatory materials.

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