January 17, 2021

Volume XI, Number 17


January 15, 2021

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Clean Water Act News: Final Rulemaking Defining Waters of the United States Released

On January 23, EPA Administrator Wheeler announced the final rulemaking for the revised definition of “Waters of the United States,” a key phrase in the Clean Water Act that delineates the extent of federal jurisdiction over activities subject to the Act. The Administration has sought to revise the definition of “WOTUS,” which has long been the subject of debate, controversy, litigation, and inconsistent application. The prior Administration’s rule significantly expanded the scope of WOTUS and never went into effect nationwide due to litigation. The new revised definition of WOTUS, titled the “Navigable Waters Protection Rule,” implements a categorical approach to Clean Water Act jurisdiction that recognizes the significance of hydrology while it also preserves meaningful legal categories and the role of states in protecting other types of waters (like groundwater). 

The Rule’s categorical approach will regulate four types of waterbodies: territorial seas and waters used (or formerly or possibly used) in interstate or foreign commerce; tributaries; lakes, ponds, and impoundments of jurisdictional waters; and adjacent wetlands. The rule also specifically excludes 12 categories of waters, waterways, or manmade features dealing with water like waste treatment facilities. The rule supports these categories with a number of important definitions that further clarify whether a given waterbody is jurisdictional. For clients already familiar with the proposed rule, the final rule retains much of the proposed rule’s approach but provides additional clarity in a number of areas, including the duration and geographic scope of the “typical year” rolling 30-year period which is relevant to assessing whether a particular water is jurisdictional. The final rule maintains the proposal that ephemeral waters are not subject to the Clean Water Act. The final rule also explains that ditches are not jurisdictional unless the ditch meets the definition of a tributary. Further, ephemeral waterbodies that connect downstream jurisdictional waterbodies with upstream waterbodies will not break jurisdiction to that upstream waterbody when the ephemeral feature maintains a channelized surface connection between the two bodies in a typical year. 

A copy of the prepublication rule may be found here. The rule will take effect 60 days after its promulgation in the Federal Register.

© 2020 Bracewell LLPNational Law Review, Volume X, Number 27



About this Author

Ann Navaro, Bracelwell Law Firm, Washington DC, Environmental and Litigation Law Attorney

Ann Navaro advises on and litigates under the federal laws and policies governing natural resources and the environment. After more than 25 years as a top litigator and policy adviser to the federal government, Ann brings exceptional insight and acumen to clients seeking to build infrastructure, produce valuable natural resources, or improve government policies and programs affecting their businesses. She has held senior legal and policy positions at the US Army Corps of Engineers and the US Department of the Interior, including most recently as Counselor to the...

Sara M. Burgin, Bracewell, Environmental Compliance Lawyer, Water Quality Issues Attorney

Sara provides counsel to clients on environmental issues, particularly on issues related to water. She advises on permitting, compliance and enforcement matters in association with onshore and offshore wastewater and storm water discharges; issues relating to surface water and ground water rights; water contracts; Spill Prevention Control and Countermeasures (SPCC) plan requirements and applicability issues; Clean Water Act (CWA) jurisdiction; issues associated with public water systems at industrial facilities; and dredge and fill permit requirements.

Daniel Pope Energy Environmental Attorney

Daniel Pope provides environmental permitting and regulatory assistance to industrial companies, particularly in the energy sector. He also helps in the defense of environmental enforcement actions and advises on the environmental aspects of transactional matters.

Prior to joining Bracewell, Daniel served in the Office of the Attorney General of Texas as an intern in the Civil Medicaid Fraud Division, and eventually as a law clerk in the Special Litigation Division. He also served as a judicial assistant for The Honorable Fred Biery, Judge to the US District Court for the Western...