New WOTUS Rule Finalized

The U.S. Environmental Protection Agency (EPA) and the Department of the 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. 

Congress, in the Clean Water Act, explicitly directed the agencies to protect “navigable waters.” The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them. 

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 also details 12 categories of exclusions, features that are not “waters of the United States,” such as features that only contain water in direct response to rainfall (e.g., ephemeral features); groundwater; many ditches; prior converted cropland; and waste treatment systems.

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.

“For small businesses like mine, regulatory uncertainty and inconsistency result in real costs,” said Alan Parks of National Stone, Sand and Gravel Association (NSSGA) member Memphis Stone & Gravel. “The new WOTUS definition continues to protect our nation’s water and provides clarity on several key exclusions such as ponds built on dry land, pits and basins associated with mining, and streams that only convey water after storm events. Knowing that our gravel pits and water treatment basins won’t carry an additional federal regulatory burden is very helpful. These changes will allow us to be even better stewards of our local natural resources, which results in a positive benefit to our community.”

“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. 

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