The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) finalized the Navigable Waters Protection Rule to define “Waters of the United States” establishing federal regulatory authority under the Clean Water Act.
For the first time, the agencies are streamlining the definition so that it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated and defines terms in the regulatory text that have never been defined before.
Under the final “Step 2” rule, four clear categories of waters are federally regulated:
- The territorial seas and traditional navigable waters.
- Perennial and intermittent tributaries to those waters.
- Certain lakes, ponds, and impoundments.
- Wetlands adjacent to jurisdictional waters.
The final rule clarifies key elements related to the scope of federal Clean Water Act jurisdiction, including:
- Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments.
- Refining the proposed definition of “typical year,” which provides important regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry.
- Defining “adjacent wetlands” as wetlands that are meaningfully connected to other jurisdictional waters, for example, by directly abutting or having regular surface water communication with jurisdictional waters.
“The scope of federal jurisdiction over waters has been confusing for years, causing permitting delays. The implementation of the 2015 WOTUS rule made matters worse,” said NSSGA Environmental Committee Chairman Mark Williams of Luck Companies. “We are pleased that the new rule provides important environmental protection of waters that need it most, while ensuring clarity to aggregates producers like Luck. It’s important that both the regulators and NSSGA members are able to understand when a federal permit is required, so we can continue to provide materials for vital infrastructure projects.”
“NSSGA members have worked for years to get a WOTUS rule that aligns with congressional intent by providing necessary protections while allowing aggregates producers the regulatory certainty by which to plan and operate their businesses and provide the necessary infrastructure projects America needs,” said NSSGA President and CEO Michael W. Johnson.