Final EPA Rule Clarifies ‘Waters Of U.S.’ Subject To The Clean Water Act
WASHINGTON–The U.S. Environmental Protection Agency and the Department of the Army have delivered on another of President’s Trump’s regulatory promises by releasing a new definition of “waters of the United States” to replace the Obama administration’s 2015 Clean Water Rule.
EPA Administrator Andrew Wheeler announced the final Navigable Waters Protection Rule Jan. 23 at the National Association of Home Builders’ International Builders’ Show in Las Vegas. He said, “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters.”
The Navigable Waters Protection Rule is to become effective 60 days after its publication in the Federal Register. The rule, fact sheets and other information are available at https://www.epa.gov/nwpr.
According to EPA, categories of waters considered to be a WOTUS under the new rule are:
- Territorial seas and traditional navigable waters;
- Perennial and intermittent tributaries that contribute flow to traditional navigable waters in a typical year;
- Lakes, ponds and impoundments of jurisdictional waters that contribute surface water flow to a traditional navigable water or territorial sea; and
- Adjacent wetlands inundated by flooding from a WOTUS in a typical year, as well as adjacent wetlands separated from a WOTUS by a natural berm, bank or dune, and adjacent wetlands separated from a jurisdictional water by an artificial dike, barrier, road or similar structure as long as the structure allows for a direct hydrologic surface connection in a typical year.
To provide clarity, EPA emphasizes, water bodies not included in the four WOTUS categories will not be jurisdictional waters under the Clean Water Act. Among those, the agency says, are:
Features that contain water only in direct response to rainfall;
- Many ditches, including most farm and roadside ditches;
- Prior converted cropland;
- Farm and stock watering ponds;
- Waste treatment systems;
- Stormwater control features excavated or constructed in upland or in nonjurisdictional waters; and
- Groundwater recharge, water reuse and wastewater recycling structures in upland or nonjurisdictional waters.
“Protecting water resources is very important to independent producers, but the overly-broad power grab under the previous administration would have had a negative impact on domestic oil and gas production,” Texas Independent Producers & Royalty Owners Association President Ed Longanecker assesses. “EPA and Department of Army have formulated a new water rule that strikes an appropriate regulatory balance protecting the nation’s water sources while respecting private property rights and state authority over land and water use.”
The Independent Petroleum Association of America says the Navigable Waters Production Rule “ends decades of uncertainty over where federal jurisdiction begins and ends,” adding: “For years, IPAA has maintained the definition of WOTUS under the Obama administration rule hurt all landowners, including U.S. energy producers.”