New Rule Re-Defining Waters of the United States Released

Following through on a campaign promise, the Trump Administration through U.S. EPA and the United States Army Corps of Engineers released in final form today its Navigable Waters Protection Rule which replaces the Obama era rule which re-defined Waters of the United States under the federal Clean Water Act. This action follows steps taken in late 2019 to repeal the Obama era rule – making way for the new rule, which had been released for public comment in 2018.

The new rule greatly amends how federal waters are defined utilizing Justice Scalia’s concurring opinion in the Rapanos case as a guide.

The rule defines four categories of waters that are federally regulated:

• The territorial seas and traditional navigable waters,
• Perennial and intermittent tributaries to those waters,
• Certain lakes, ponds, and impoundments, and
• Wetlands adjacent to jurisdictional waters.

The rule also sets forth twelve categories of exclusions from the definition. For example, features that only contain water in direct response to rainfall such as ephemeral streams and other features such as groundwater, many ditches, prior converted cropland, and waste treatment systems.

The rule attempts to clarify key elements related to the scope of federal Clean Water Act jurisdiction by:

• Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments; and
• 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.

This new rule greatly impacts permitting in the oil and gas industry by re-defining the definition of WOTUS and the need for federal permits under Section 404 of the Clean Water Act.

Also important will be to see how the states maneuver and fill the gap left by the changes to the federal definition. States with more expansive definitions of waters than the new federal definition, which will include the states in the Appalachian region, will have to determine whether additional state permitting will be needed where prior federal permitting had been present. It should also be anticipated that there will be immediate legal challenges filed by environmental groups and some states.

Click here to access the rule.