New definition for WOTUS finally put forth

The Navigable Waters Protection Rule provides a favorable definition of “waters of the United States” for the aggregate industry. Photo by Kevin Yanik

The Environmental Protection Agency (EPA) unveiled a replacement Waters of the U.S. (WOTUS) rule that provides a new definition for “waters of the United States.”

With the new Navigable Waters Protection Rule, EPA and the Department of the Army delivered on President Trump’s promise to finalize a revised definition for “waters of the United States.” According to EPA, the new rule protects the nation’s navigable waters from pollution and will result in economic growth across the country.

“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” says Andrew Wheeler, EPA administrator. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”

According to EPA, the Navigable Waters Protection Rule ends decades of uncertainty over where federal jurisdiction begins and ends. For the first time, EPA and the Army recognize the difference between federally protected wetlands and state protected wetlands. It adheres to the statutory limits of the agencies’ authority.

It also ensures that America’s water protections remain strong while giving states and tribes the certainty to manage their waters in ways that best protect their natural resources and local economies, EPA says.

The revised definition identifies four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters, like the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River near Williamsburg, Virginia; certain lakes, ponds and impoundments, such as Children’s Lake in Boiling Springs, Pennsylvania; and wetlands that are adjacent to jurisdictional waters.

These four categories protect the nation’s navigable waters and the core tributary systems that flow into those waters.

This final action also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.

Additional details

According to EPA, the final definition achieves the proper relationship between the federal government and states in managing land and water resources. The Navigable Waters Protection Rule respects the primary role of states and tribes in managing their own land and water resources, the agency says. All states have their own protections for waters within their borders and many already regulate more broadly than the federal government. This action gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.

EPA’s action was informed by robust public outreach and engagement on the Navigable Waters Protection Rule, the agency adds, including pre-proposal engagement that generated more than 6,000 recommendations and about 620,000 comments received on the proposal. The final definition balances the input the agencies received from a range of stakeholders.

Producer reaction

Aggregate producers and other industry leaders were quick to react to the new EPA rule. Find out how the aggregate industry is reacting.