EPA and Department of the Army Release Navigable Waters Protection Rule, Clarifying Jurisdictional Waters Under Federal Control

The Trump administration today released its new final rule under the Clean Water Act (CWA) clarifying the limits of federal jurisdiction over waters and wetlands that are connected to “traditional navigable waters and the territorial seas.” The new rule, called the “Navigable Waters Protection Rule,” replaces the Obama administration’s 2015 definition of “waters of the United States,” which was repealed last year. The Trump administration repealed the 2015 rule in October 2019 as step one in a promised two-step effort to clarify federal regulation of the nation’s waterways and restore more authority to the states.

The new rule defines four categories of federal jurisdictional waters: (i) traditional navigable waters and the territorial seas; (ii) perennial and intermittent tributaries to those waters; (iii) lakes, ponds and impoundments of those jurisdictional waters; and (iv) adjacent wetlands. The last category includes wetlands that abut (meaning they “touch” at least one point or side of jurisdictional waters) or that are separated by a natural or manmade barrier which allows for direct hydrologic surface connection between the wetland and the jurisdictional water.

 

 

The final rule also provides twelve categories of waters that are excluded from federal jurisdiction. Management of these resources are left to the states. Those categories of nonjurisdictional waters include groundwater; ephemeral features that only flow in direct response to precipitation; many farm and roadside ditches; prior converted croplands so long as the land has been used at least once in the preceding five years for or in support of agricultural purposes; artificial lakes and ponds, including reservoirs and farm, irrigation and stock watering ponds; artificially irrigated lands, including fields flooded for agricultural production; and upland stormwater control features, among others.