Compliance Update: New Joint Rule Clarifies and Limits the Jurisdiction of the “Waters of the US” Rule

Date: March 06, 2020

On January 23, 2020, the Environmental Protection Agency (EPA) and the Army Corps of Engineers finalized a joint rule to clarify and narrow federal jurisdiction under the Clean Water Act (CWA). The new rule, known as the Navigable Waters Protection Rule, rescinds the Obama-era “Waters of the United States” (WOTUS) Rule. The new rule should benefit many small business landowners who were subject to expansive regulation under the previous rule; previously, WOTUS regulated even lands that were dry most of the year. As a result, many landowners struggled to know whether they could safely develop or use portions of their land that were only occasionally wet.

The Navigable Waters Protection Rule provides greater clarity to landowners by making clear that private property is not subject to CWA regulation if it is wet only in response to rainfall from a storm. This “ephemeral” water flow may be regulated at the state level but is not subject to federal regulation. The revised rule also helps protect landowners from inadvertently violating the CWA by giving more bright-line guidance.

The Navigable Waters Protection Rule clarifies that only the following waters are subject to CWA regulation:

  • Traditional navigable waters (e.g., oceans, bays, sounds, rivers);
  • Streams and other tributaries with a continuous surface connection to traditional navigable waters on a regular basis in a typical year;
  • Lakes, ponds and other impoundments with a continuous surface connection to traditional navigable waters on a regular basis in a typical year; and
  • Wetlands that touch traditional navigable waters, or other regulated waters.

These clarifications should help landowners avoid massive penalties from inadvertent violation of the CWA. However, the Navigable Waters Protection Rule is already under legal attack. Several states have filed lawsuits against the EPA and the Army Corps of Engineers in an attempt to roll back the revised rule. The NFIB Small Business Legal Center will continue to monitor the lawsuits and keep the small business community aware of any updates.

*While the information provided here is intended to be accurate, it should not be taken for legal advice. If you are unsure as whether you can safely use or develop your lands, it is advisable to consult with a trusted environmental attorney in your state.

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