Navigable Waters Protection Rule Implementation Halted

On August 30, 2021, the U.S. District Court of the District of Arizona ordered that the Navigable Waters Protection Rule (NWPR) be vacated and remanded. As a result, the U.S. EPA and U.S. Army Corps of Engineers have halted implementation of the NWPR and have reverted to the “waters of the United States” interpretation pre-2015. This could have a huge impact on existing jurisdictional determinations and permits.

According to 40 CFR 230.3(s), the term waters of the United States means:

All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

1. All interstate waters including interstate wetlands;

2. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

   1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

   2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

   3. Which are used or could be used for industrial purposes by industries in interstate commerce;

3. All impoundments of waters otherwise defined as waters of the United States under this definition;

4. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;

5. The territorial sea;

6. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.

The EPA website on this topic states “Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.”

For more information please see the EPA website on the Current Implementation of Waters of the United States.