Clean Water Current

(January 29, 2020) – Less than a year after EPA and the Department of the Army (Agencies) proposed a revised definition of “Waters of the United States” (WOTUS) to determine which waterbodies are jurisdictional under the Clean Water Act (CWA), the Agencies announced the final rule, The Navigable Waters Protection Rule, on January 23.

This new definition of WOTUS effectively replaces the 2015 Clean Water Rule with what the Agencies are considering a more streamlined definition that includes four categories of jurisdictional waters, as well as clear exclusions for twelve categories of water features that have traditionally not been regulated under the CWA.

NACWA is pleased to see that the Agencies have maintained the exclusions for waste treatment systems, stormwater control features, wastewater recycling and reuse structures, and groundwater. These exclusions have traditionally not been considered jurisdictional WOTUS. These were the central concerns to NACWA members and were highlighted in the Association’s comments in April 2019.

As indicated in the preamble of the new WOTUS rule, the Agencies consider this revision to re-codify the 1986 and 1988 regulations that will help distinguish between waters that are WOTUS subject to federal regulation and waters that are subject to state or tribal jurisdiction, consistent with the CWA direction to both “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and “recognize, preserve, and protect the primary responsibilities and rights of States.” Further, the Agencies consider this final rule more consistent with the Agencies’ constitutional and statutory authority, and within the scope of the Administrative Procedures Act, than the 2015 Clean Water Rule.

The pre-publication version of the Navigable Waters Protection Rule largely mirrors the proposed rulemaking, although the Agencies did appear to carefully consider and refine the meanings of key modifiers that may impact the clean water community, such as “typical year” to mean within the normal range of precipitation over a rolling 30-year period for a particular geographic area (i.e., “the characteristics of a waterbody at times that are not too wet and not too dry”). The Agencies also carved out a new exclusion for diffuse stormwater runoff and directional sheet flow because these do not convey channelized surface flow nor do they provide regular or predictable surface water connections between upstream relatively permanent waterbodies and jurisdictional WOTUS.

The Navigable Waters Protection Rule draws a line between four categories of jurisdictional waters and twelve excluded, non-jurisdictional water features.

The categories of waters that are considered jurisdictional WOTUS include:

1. The territorial seas and traditional navigable waters;
2. Perennial and intermittent tributaries that contribute surface water flow to such waters;
3. Certain lakes, ponds, and impoundments of jurisdictional waters; and
4. Wetlands adjacent to other jurisdictional waters;

The 12 categories of waters that are excluded from the definition of jurisdictional WOTUS or are to be considered non-jursidictional include:

1. Groundwater;
2. Ephemeral features that flow only in direct response to precipitation;
3. Diffuse stormwater runoff and directional sheet flow over upland;
4. Certain ditches;
5. Prior converted cropland;
6. Certain artificially irrigated areas;
7. Certain artificial lakes and ponds;
8. Certain water-filled depressions;
9. Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
10. Groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and
11. Waste treatment systems.

If members have questions on particular aspects of the rule or the implications on the clean water community, please contact Emily Remmel, NACWA’s Director of Regulatory Affairs.