EPA, Army Corps of Engineers finalize WOTUS definition rule

WASHINGTON — The U.S. Environmental Agency and Army Corps of Engineers announced a final rule establishing a definition of “waters of the United States” under the Clean Water Act.

They chose the pre-2015 definition as a foundation “because it has supported decades of clean water progress and has been implemented by every administration in the last 45 years,” the agencies that jointly administer the Clean Water Act said in a news release.

“The approach provides clear rules of the road to advance agricultural activities, infrastructure projects and economic investments while protecting water quality. EPA and Army are prioritizing practical, on-the-ground implementation by providing tools and resources to support timely and consistent jurisdictional determinations under this definition.

“The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters,” the agencies said.

“As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.”

Under the new rule, those protected waters include ephemeral streams, which flow in response to precipitation. The Trump administration’s 2020 rule categorically excluded ephemeral streams from regulation.

“All tributary streams, including perennial, intermittent and ephemeral streams, are chemically, physically and biologically connected to larger downstream waters via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed and transported,” the new rule states.

“Streams, even where seasonally dry, are the dominant source of water in most rivers, rather than direct precipitation or groundwater input to mainstem river segments. Within stream and river networks, headwater streams make up most of the total channel length.

“The smallest streams represent an estimated three-quarters of the total length of stream and river channels in the U.S. Because of their abundance and location in the watershed, small streams offer the greatest opportunity for exchange between the water and the terrestrial environment.”

Ag Exemptions

The agencies’ definition of WOTUS does not affect the longstanding activity-based permitting exemptions provided to the agricultural community by the Clean Water Act.

Agricultural activities that are exempt from Section 404 permitting include:

• Normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber and forest products, or upland soil and water conservation practices.

• Maintenance of dikes, levees, groins, riprap and transportation structures.

• Construction of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches.

• Construction or maintenance of farm roads, in accordance with best management practices.

Longstanding Exclusions

The final rule codifies exclusions from the definition of WOTUS in regulatory text to provide clarity to the agricultural community. The final rule includes two longstanding exclusions from the definition of WOTUS.

• Prior converted cropland: The final rule defines prior converted cropland consistent with the U.S. Department of Agriculture’s definition. Prior converted cropland remains excluded from the definition of WOTUS as long as it is available for agricultural commodity production. The agencies interpret availability for agricultural commodity production to include uses such as crop production, haying, grazing, agroforestry, or idling land for conservation uses.

• Waste treatment systems: Features excluded under this category include treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act.

Additional Exclusions

The final rule includes six additional exclusions from the definition of WOTUS to further increase regulatory certainty.

• Ditches, including roadside ditches, excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water.

• Artificially irrigated areas that would revert to dry land if the irrigation ceased.

• Artificial lakes or ponds created by excavating or diking dry land that are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.

• Artificial reflecting pools or swimming pools and other small ornamental bodies of water created by excavating or diking dry land.

• Water-filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction operation is abandoned and the resulting body of water meets the definition of WOTUS.

• Swales and erosional features — for example, gullies and small washes — that are characterized by low volume, infrequent or short duration flow.

The final revised definition of the WOTUS rule will be effective 60 days after it’s published in the Federal Register.

“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael Regan.

“Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity and protects people’s health while providing greater certainty for farmers, ranchers and landowners.”

“This final rule recognizes the essential role of the nation’s water resources in communities across the nation,” added Michael Connor, Army for Civil Works assistant secretary.

“The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations and other stakeholders.”