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Navigable Waters Protection Rule

Frequently Asked Questions

On this page:

Q-1: What does the February Executive Order on “waters of the United States” say?

A-1: The February 28, 2017 Presidential Executive Order entitled “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” states that it is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution. It also directs the Environmental Protection Agency (EPA) and the Department of the Army to review the 2015 Rule defining “waters of the United States” for consistency with these priorities and publish for notice and comment a proposed rule rescinding or revising the 2015 Rule, as appropriate and consistent with the law. Further, the Order directs the agencies to consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).

Read the Executive Order here.

Q-2: How are EPA and the Department of the Army (the agencies) responding to the Executive Order?

A-2: To meet the objective described in the February 28, 2017 Executive Order, the agencies followed a comprehensive two-step process that provides greater regulatory certainty across the country:

  1. The Environmental Protection Agency and the Department of the Army have finalized a rule to repeal the 2015 Clean Water Rule ("the 2015 Rule") and re-codify the regulatory text defining “waters of the United States” that existed prior to the 2015 Rule. The final rule became effective on December 23, 2019. Read the final rule.
  2. The agencies also finalized the Navigable Waters Protection Rule to revise the definition of “waters of the United States.” The Navigable Waters Protection Rule is intended to increase CWA program predictability and consistency by increasing clarity as to the scope of “waters of the United States” federally regulated under the Act. The final revised definition is also intended to clearly implement the overall objective of the CWA to restore and maintain the integrity of the nation’s waters while respecting the policy of Congress to preserve the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution and to manage their own land and water resources.  This rule will become on June 22, 2020. Read the final rule here.

Q-3: Why do people care about how “waters of the United States” is defined?

A-3: The jurisdictional scope of the 1972 Clean Water Act is the “navigable waters,” defined as the “waters of the United States” (CWA Section 502(7)). This is important because many Clean Water Act programs—including tribal and state water quality certification programs, pollutant discharge permits, and oil spill prevention and planning programs—apply only to “waters of the United States.” The Clean Water Act provides the discretion for the implementing agencies—EPA and the Army—to define “waters of the United States” in regulations.

Q-4: What is the status of the rulemaking process?

A-4: The agencies completed their comprehensive, two-step rulemaking process to review and revise the definition of “waters of the United States” consistent with Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

On April 21, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) published in the Federal Register the Navigable Waters Protection Rule to establish a new definition of “waters of the United States” (WOTUS) under the Clean Water Act. This rule represents the second step of a comprehensive two-step process to review and revise the definition of “waters of the United States” consistent with the February 2017 Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Navigable Waters Protection Rule will become effective on June 22, 2020. Read the final Navigable Waters Protection Rule.

Q-5: What effect does the Step One final rule have on the 2015 Rule?

A-5: The Step One final rule repeals the 2015 Rule and recodifies the regulatory definition that existed prior to the 2015 Rule. With this final rule, the agencies are implementing the pre-2015 Rule regulations informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.

Q-6: What effect will the Navigable Waters Protection Rule's definition of “waters of the United States” have?

A-6: The final revised definition provides clarity, predictability, and consistency so that regulators and the public can understand where the Clean Water Act applies and where it does not. For more information about the revised definition, see:

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