On January 23, 2020, the Environmental Protection Agency (EPA) and the Department of the Army (Corps) finalized anticipated revisions to the Navigable Waters Protection Rule defining the scope of waters subject to federal regulation under the Clean Water Act. The revisions follow the dictates of President Trump’s February 28, 2017 Executive Order 13778: “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”
Under the new rule, the EPA and the Corps require regulation of four primary categories of water:
- the territorial seas and traditional navigable waters;
- perennial and intermittent tributaries that contribute surface water flow to such waters;
- certain lakes, ponds, and impoundments of jurisdictional waters; and
- wetlands adjacent to other jurisdictional waters.
One must review the details of the revisions to understand the significance of the changes. In sum, the revisions to the rule at 40 CFR Part 120 identify four categories of “jurisdictional” waters that are “waters of the United States” and other waters that are “non-jurisdictional” and thus excluded from the definition.
The exclusions are getting the most heat from opponents of the changes and litigation is a certainty. Click here for a link to a scathing critique of the new rules by the Natural Resources Defense Council titled, “EPA Flunks Science 101 With Its Dirty Water Rule.”
Following 322 pages of “preamble” in the Federal Register notice which explains the basis for the revisions, the 17 pages dedicated to the final rules specify the required revisions to several federal regulations implemented under the Clean Water Act including Part 328 of Title 33 of the CFR, and eleven separate parts of the Title 40 rules. Revisions to the rules at 40 CFR Part 120 provide the specifics of the new definition.
Click here for a link to the official notice.
Click here for a link to the Federal Register Notice.
This post was drafted by John Watson, an attorney in the Denver, CO office of Spencer Fane LLP. For more information, visit spencerfane.com.