EPA Releases Final “Step 2” Rule in WOTUS Overhaul

WASHINGTON, DC – The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) published the Navigable Waters Protection Rule (NWPR) to define “Waters of the United States” in the Federal Register on Tuesday. 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 traditional navigable 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: (1) the territorial seas and traditional navigable waters, (2) perennial and intermittent tributaries to those waters, (3) certain lakes, ponds, and impoundments, and (4) 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; groundwater; prior converted cropland; many ditches, including most roadside and farm ditches; farm and stock watering ponds; and, waste treatment systems. The NWPR is set to go into effect on June 22, 2020.