On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers published a rule which will replace the 2015 Clean Water Rule previously released under the Obama administration. In its place, the regulatory text defining “Waters of the United States” (WOTUS) prior to 2015 was re-codified in the new Navigable Waters Protection Rule. The re-codified rule now identifies four categories of federally regulated or “jurisdictional” waters which include:
- Territorial seas and traditional navigable waterbodies
- Perennial and intermittent tributaries to those waters
- Certain lakes, ponds and impoundments
- Adjacent wetlands to those jurisdictional waters
The new rule also defines 12 categories of exemptions or exclusions, including ephemeral features, or those waters in direct response to rainfall, groundwater, ditches, converted cropland, and waste treatment systems are also categorically exempt or excluded in certain cases.
One of the more significant changes of the new rule will redefine what wetlands would have federal protection under the WOTUS definition. The new rule redefines “adjacent wetlands” as those “meaningfully connected” to other jurisdictional waters. Therefore, wetlands that do not directly abut, or have regular surface water communication with jurisdictional waters, will not fall under this new definition of WOTUS. In the previous WOTUS definition, there was a much broader definition of protected wetlands, in which all water features having some ecological connection with a navigable body of water were included. In this context, ecological connection meant any wetland or waterbody, either by itself or in combination with others, significantly affected the physical, biological, and chemical integrity of the navigable waters downstream.
Under the new rule, it is likely millions of acres of wetlands and other waters across the U.S. will no longer be subject to federal jurisdiction. Instead, the new rule will leave the states to decide the level of protection to be afforded to these non-jurisdictional waters. The final rule will become effective 60 days after publication in the Federal Register, and the full text of the updated final rule is on EPA's website.
For more information on the updates to this rule, please contact your local Trinity office.