Navigable Waters Protection Rule

• Navigable Waters Protection Rule
  • ​Navigable Waters Protection Rule Materials
• Public Outreach Activities (concluded)
• Public Comment Period (concluded) 

The Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps. This includes working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.

A durable definition of WOTUS is essential to ensuring clean and safe water in all communities—supporting human health, animal habitat, agriculture, watersheds, flood management, local economies, and industry. This rulemaking process follows a review conducted by the agencies as directed by January 20, 2021 Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The Agencies have now announced initial public meeting dates and requested written pre-proposal recommendations regarding defining “waters of the United States.”

Further details about the Agencies’ plans, including information regarding the upcoming public meetings and pre-proposal recommendations docket, can be found here.

On April 21, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) published the Navigable Waters Protection Rule to define “Waters of the United States” in the Federal Register. 

Read the final Navigable Waters Protection Rule.

Under the final rule, four categories of waters 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 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 (e.g., ephemeral features); groundwater; many ditches; prior converted cropland; and waste treatment systems.

The final rule clarifies elements related to the scope of federal Clean Water Act jurisdiction, including:

• Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments.
• Refining the proposed definition of “typical year,” which provides important regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry.
• 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.

Navigable Waters Protection Rule Materials

• Final Rule: The Navigable Waters Protection Rule: Definition of “Waters of the United States”
• Fact Sheets:​
  • Navigable Waters Protection Rule Overview
  • “Typical Year” and the Definition of “Waters of the United States”
  • Implementing the Final 2020 “Waters of the United States” Definition
  • Mapping Fact Sheet
  • Rural America Fact Sheet
• Supporting Documents: 
  • Economic Analysis
  • Resource and Programmatic Assessment
  • Access All Supporting Documents

Public Outreach Activities (concluded)

Public Webcast - The EPA and the Army held a public webcast to help explain the key elements of the final Navigable Waters Protection Rule on February 13, 2020. The webcast was recorded and links are available below.

• Navigable Waters Protection Rule Webcast Recording 
• Navigable Waters Protection Rule Webcast Presentation Slides

The agencies held pre-proposal public meetings and conducted tribal and federalism consultation to hear recommendations from stakeholders regarding the definition of “waters of the United States”. More information about these meetings can be found at the Navigable Waters Protection Rule Pre-Proposal Outreach and Consultation webpage.

Public Comment - Navigable Waters Protection Rule (concluded)

On December 11, 2018, the Environmental Protection Agency and the Department of the Army proposed a revised definition of “waters of the United States” that clarifies federal authority under the Clean Water Act. The proposed rule published in the Federal Register (FR) on February 14, 2019 and was open for a 60-day public comment period. The public comment period closed on April 15, 2019. Comments were posted to Docket ID No. EPA-HQ-OW-2018-0149 and can be found here . 

In addition, the agencies established an administrative docket, Docket ID No. EPA-HQ-OW-2017-0480, to solicit pre-proposal recommendations for the Step 2 rulemaking to define “waters of the United States.” The docket closed on November 28, 2017. Written recommendations can be found here in the docket.