On Jan. 23, 2020, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers announced the finalization of the long anticipated revised definition of Waters of the United States. The final rule, entitled “The Navigable Waters Protection Rule: Definition of Waters of the United States,” is the second step in a two-step process to revise the regulations concerning those waters subject to federal jurisdiction under the Clean Water Act.
This rule replaces the 2015 Clean Water Rule which was problematic for many small businesses. The rule was repealed on Oct. 22, 2019, restoring the regulatory text that existed prior to its publication. This final rule attempts to resolve ambiguities in prior text by offering a new definition of Waters of the United States.
The rule includes four categories of jurisdictional waters and provides several exclusions for water features that have not typically been regulated. Small businesses were largely in favor of the new rule, with some modifications and clarifications. On Apr. 11, 2019, Advocacy filed a public comment letter on the rule outlining the concerns of small business. A copy of that letter is available here.
The final rule largely mirrors the agencies’ proposed rule, key features of which are summarized in a fact sheet that Advocacy published here. There are, however, a few changes from the proposal including the exclusion of ephemeral streams that flow only during or after rainfall or snowfall. Additionally, wetlands that do not have a surface water connection to intermittent or perennial streams are also excluded. The rule allows for states to manage water resources at the state rather than federal level.
The final rule will take effect 60 days after publication in the Federal Register. A pre-publication version of the final rule is available here.
- Advocacy contact: Prianka Sharma at (202) 205-6938.