EPA Finalizes Navigable Waters Protection Rule to Revise Definition of "Waters of the United States"

April 21st, 2020 by Ann Rippe

Summary: EPA is finalizing the Navigable Waters Protection Rule to define the term "waters of the United States" used to determine applicability of oil discharge, oil pollution prevention, and NPDES permit requirements under the Clean Water Act. The definition includes waters within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and encompasses traditional navigable waters, including the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain lakes, ponds, and impoundments of jurisdictional waters; and adjacent wetlands. The definition specifically excludes ephemeral features that flow only in direct response to precipitation; groundwater; diffuse stormwater runoff and directional sheet flow over upland; certain ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands; prior converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds constructed or excavated in upland or non-jurisdictional waters; water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity; pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel; stormwater control features excavated or constructed in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off; groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and waste treatment systems. The final rule also clarifies and defines several other terms related to the definition of "waters of the United States."
[Full Text - 85 FR 22250]

Citations: 40 CFR 112.2; 40 CFR 120.2; 40 CFR 122.2

Ann Rippe

Manager of Regulatory Services