EPA and USACE Announce New WOTUS Definition

Environmental Protection Agency (EPA) Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James announced the finalized Navigable Waters Protection Rule at the National Association of Home Builders (NAHB) International Builder’s Show in Las Vegas on January  23, 2020.  The new rule updates the definition for what are “Waters of the United States” (WOTUS). The new rule will be published in the Federal Register in the coming days and the rule will go into effect 60-days from the publication date. 

The updated WOTUS definition includes four categories of jurisdictional waters, provides exclusions for many water features that had not been regulated and defines terms that had not been defined before.  The four categories of waters that are federally regulated under the new Clean Water Act include:

  • Territorial seas and traditional navigable waters
  • Perennial and intermittent tributaries (streams) to those waters
  • Certain lakes, ponds and impoundments
  • Wetlands adjacent to jurisdictional waters

Additionally, the new rule attempts to provide clarity regarding what waters are NOT subject to federal protection: those waters include ephemeral streams; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds and waste treatment systems.

Stream + Wetlands Foundation is currently reviewing the final WOTUS rule, will continue to monitor activities surrounding its impact, and are available to discuss how this change could affect projects. We will continue to work with permit applicants, their consultants and regulatory agencies to provide high quality compensatory mitigation options that protect, enhance and restore aquatic resources.