On April 21, 2020, the U.S. Environmental Protection Agency (US EPA) and the Army Corps of Engineers (Army Corps) published in the Federal Register their revised rule defining which waterbodies are subject to federal jurisdiction. The Navigable Waters Protection Rule, a replacement for the Obama Administration’s Clean Water Rule, seeks to define what constitutes “waters of the United States,” the term within the Clean Water Act that controls permitting and regulatory requirements for waterbodies that fall within that definition. The published rule is set to become final on June 22, 2020. Publication to the Federal Register starts a 60-day clock before the rule goes into effect and opens the door for anticipated legal challenges.
The Navigable Waters Protection Rule lists four categories of waters that would be subject to federal jurisdiction:
- territorial seas and waters used in interstate or foreign commerce
- certain tributaries
- lakes and ponds
- wetlands that abut any of the other three types of waters
It also specifies 12 previously regulated waterbody types that would not be subject to federal regulation. Among them are ephemeral streams and similar bodies of water, groundwater, ditches, previously converted cropland, artificial lakes and ponds, constructed stormwater control ponds or other features, and “water-filled depressions” that are considered “incidental” to construction or mining activity.
The rule represents a departure from the Obama-era Waters of the United States rule and may require the regulated community to take a second look at previously-regulated waterbodies. Some experts anticipate that more than half the country's wetlands, for example, would no longer qualify as regulated waters pursuant to the new rule. Moreover, due to the way legal challenges take place under the Clean Water Act, it is conceivable that the rule could end up in effect in some parts of the country but not others.