The Environmental Protection Agency along with the US Army Corps of Engineers has set out the new Rule for “Waters of the United States.” Waters of the United States are regulated under the EPA under the Clean Water Act. The Clean Water Act (1972) gives the EPA authority to regulate navigable waters, territorial seas, and interstate waters, along with bodies of water that affect them.

“The agencies developed this rule with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “Waters of the United States” framework.” said the EPA.

The new Rule comes after 7 years of broadening and restricting the EPA’s authority over two presidential terms. During the Obama Administration, the EPA was given broader authority in 2015 to regulate different bodies of water in the United States. However, in 2019 the Trump Administration repealed a lot of those initiatives. Further more, the Trump Administration wanted to cut back the EPA’s authority over different bodies of water in the United States. Those were struck down in the federal courts. Now there is confusion about what the EPA regulates. 

Uncertainty and confusion over what constitutes as Waters of the United States have been an issue that this new Rule seeks to resolve on what the EPA can regulate. The EPA wrote this Rule to clarify the EPA’s jurisdiction, going back to what was under EPA authority before 2015 regulations and litigations started.

“The [new] rule restores fundamental protections so that the nation will be closer to achieving Congress’ direction in the Clean Water Act that our waters be fishable and swimmable. It will also ensure that our waters support recreation and wildlife. This action provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities—all while protecting water quality,” said the EPA’s public fact sheet.

To give easy clarification, the EPA provided three fact sheets for the public, land owners, and those in the agricultural community. The fact sheets combined tell what waters are under EPA jurisdiction, what waters could fall under EPA jurisdiction depending on two tests, and the exclusions to EPA intervention for land-owners and those in the agricultural community to inform them if the waters on their land could fall under EPA jurisdiction and if they need EPA permits:

• Public Fact Sheet
• Land Owners.
• Agricultural Community.

Below are the categories of water the EPA outlined in the :

• Traditional Navigable Waters are regulated by the EPA
  • Large rivers and lakes that could be used in interstate or foreign commerce, as well as water bodies affected by tides. 
• Territorial Seas are regulated by the EPA
  • Territorial seas that extend three miles out to sea from the coast.
• Interstate Waters are regulated by the EPA 
  • Includes waters like streams, lakes, or wetlands that cross or form part of state boundaries.
• Impoundments are regulated by the EPA
  • “Impounded bodies of water created in or from “waters of the United States,” like reservoirs and beaver ponds.” 
•  Tributaries
  • Branches of creeks, streams, rivers, lakes, ponds, ditches, and impoundments that ultimately flow into traditional navigable waters, the territorial seas, interstate waters, or impoundments of jurisdictional waters. Tributaries are jurisdictional if they meet either the relatively permanent standard or significant nexus standard
• Adjacent Wetlands
  • These wetlands can be next to, abutting, or near other jurisdictional waters or behind certain natural or constructed features. They are most often within a few hundred feet of jurisdictional waters. Adjacent wetlands are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard, or where the wetland is adjacent to traditional navigable water, the territorial seas, or interstate water. 
• Additional Waters
  • These lakes, ponds, streams, or wetlands do not fit into the above categories. They are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard. 

For the EPA to regulate tributaries, adjacent wetlands, and additional waters, they must meet two standards for those bodies of water:

• Relatively Permanent Test “provides important efficiencies and clarity for regulators and the public by readily identifying a subset of waters that will virtually always significantly affect [regulated] waters. To meet the relatively permanent standard, the waterbodies must be relatively permanent, standing, or continuously flowing waters connected to [regulated] waters or waters with a continuous surface connection to such relatively permanent waters or to [regulated] waters.”
• The Significant Nexus Test “clarifies if certain waterbodies, such as tributaries and wetlands, are subject to the Clean Water Act based on their connection to and effect on larger downstream waters that Congress fundamentally sought to protect. A significant nexus exists if the waterbody (alone or in combination) significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.”

The following is a list of all the exclusions from EPA intervention:

• Prior converted cropland, adopting USDA’s definition and generally excluding wetlands that were converted to cropland prior to December 23, 1985.
• • Agricultural activities that are exempt:
    • 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, and
    • Construction or maintenance of farm roads, in accordance with best management practices
• Waste treatment systems, including treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act.
• 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.
• Waterfilled 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 “waters of the United States.”
• Swales and erosional features (e.g., gullies, small washes), that are characterized by low volume, infrequent, or short duration flow.

For Land Owners, exemptions are:

• Established (ongoing) farming, ranching, and silviculture 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 (but not construction) of drainage ditches; 
• Construction and maintenance of irrigation ditches;
• Construction and maintenance of farm or stock ponds;
• Construction and maintenance of farm and forest roads, in accordance with best management practices, and
• Maintenance of structures such as dams, dikes, and levees. 

Additionally, many discharges of pollutants other than dredged or fill material do not require permits:

• Pollutants from nonpoint-source agricultural and silvicultural activities, including stormwater runoff from orchards, cultivated crops, pastures, range lands, and forest lands;
• Return flows from irrigated agriculture, and
• Discharges from a water transfer.

The new Rule was passed by President Biden on December 30th. However, there is a Supreme Court case occurring right now between the EPA and an Idaho family. The case focuses on areas of water on private land that could fall under EPA regulation, and what test courts should use to determine if something falls under the regulation of the EPA. The Supreme Court will decide what standard courts should use when it comes to determining what waters are regulated by the EPA. Their ruling could upend the new EPA Rule entirely, but we don’t know for sure depending on how they decide.