(April 24, 2020) – In a Notice published in the Federal Register on April 21, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) finalized the Navigable Waters Protection Rule, which provides updated regulations on what waters fall under the jurisdiction of the Clean Water Act.  

Since President Trump signed an Executive Order three years ago to review the 2015 Clean Water Rule, EPA and the Army have proceeded through a step-wise process to rescind the 2015 Clean Water Rule and issue a new rule more consistent with the late Supreme Court Justice Antonin Scalia’s interpretation of the definition of waters of the United States (WOTUS) in Rapanos v. United States.

The final rule published this week defines jurisdictional waters in four categories including: the territorial and traditional navigable waters, perennial and intermittent tributaries to those waters, certain lakes, ponds, and impoundments, and wetlands adjacent to jurisdictional waters.

Throughout this process NACWA has urged EPA and the Army to maintain existing exclusions that have been traditionally preserved under longstanding Agency interpretation and practice.  NACWA is pleased that the final rule maintains existing exclusions for waste treatment systems, stormwater control features, wastewater recycling structures and groundwater among others.

The final rule will go into effect on June 22 and will replace the 2019 Step One Rule that recodified the pre-existing regulatory text from before the 2015 Clean Water Rule.

If members have questions, please contact Emily Remmel, NACWA’s Director of Regulatory Affairs.