EPA and U.S. Army Corps of Engineers Finalize Rule Defining "Waters of the United States."

February 2020

On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (together, “Agencies”) finalized the Navigable Waters Protection Rule defining “waters of the United States.” The final rule defines waters that are subject to federal regulations under the Clean Water Act (33 U.S.C. 1251 et seq. [“CWA”]) consistent with Supreme Court decisions interpreting the term, as directed by Executive Order 13778.

The Agencies’ final rule is the second step of a two-step process to rescind and replace the Obama administration’s 2015 rule defining “waters of the United States,” which was highly controversial among the states and regulated community due to its expansive definition of waters subject to federal jurisdiction. The Agencies’ first step, rescinding the 2015 and reinstating the regulatory text prior to the 2015 rule’s publication, became effective on December 23, 2019.

In short, the final rule defines “waters of the United States” to encompass four categories of jurisdictional waters: (1) the territorial seas and traditional navigable waters; (2) perennial and intermittent tributaries that contribute surface flow to the territorial seas and traditional navigable waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to, and with a direct hydrologic surface connection with, other jurisdictional waters.

The final rule also includes the following categorical exclusions from the definition of “waters of the United States,” including, among others: (1) groundwater; (2) ephemeral features that flow only in direct response to precipitation (snow or rainfall); (3) diffuse stormwater runoff and directional sheet flow over upland; (4) ditches that are not jurisdictional waters; (5) water-filled depressions in upland on non-jurisdictional waters incidental to construction and mining activities, and pits excavated in upland or non-jurisdictional waters to obtain fill, sand, or gravel; and (6) stormwater control features in upland or non-jurisdiction waters.

The Agencies’ final rule also includes new and revised definitions of many of the above terms to provide clarity and predictability for federal agencies, states, tribes, the regulated community, and the public.

The Agencies final rule will become effective 60 days after the rule is published in the Federal Register. A copy of the pre-publication final rule can be viewed at the following link: Pre-Publication Final Navigable Waters Protection Rule.

Adam Guernsey is a Partner at Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California

© 2020 – Harrison, Temblador, Hungerford & Guernsey LLP. All rights reserved. The information in this article has been prepared by Harrison, Temblador, Hungerford & Guernsey LLP for informational purposes only and does not constitute legal advice.