On January 23, 2020, the EPA and the U.S. Army Corps of Engineers
released the Navigable Waters Protection Rule (NWPR) which
redefines “waters of the United States” (WOTUS). This new rule adopts a more limited
definition of WOTUS that are subject to the Clean Water Act. The NWPR defines WOTUS to include only four
categories of waters: (1) territorial
seas and waters which are currently used, or were used in the past, or may be susceptible
to use in interstate or foreign commerce, including waters which are subject to
the ebb and flow of the tide; (2) tributaries; (3) lakes and ponds, and
impoundments of jurisdictional waters; and (4) adjacent wetlands. The NWPR confirms
that groundwater is not subject to regulation under the Clean Water Act,
which means water features connected only by groundwater are also not subject
to regulation.
The reduced scope in federal protections under the NWPR means
that states will need to determine what waters within its boundaries are no
longer covered and whether regulation adjustments are necessary. Some states may need to decide whether to
continue enforcing their existing regulations that go
beyond the now contracted federal rules.
The NWPR will likely face multiple challenges in federal district courts.
