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Navigable Waters Protection Rule defines waters of the U.S.

Posted on February 23, 2020 12:00 AM

By Jennifer Whittaker

Landowners and farmers now have clarity as to what bodies of water the federal government can and cannot regulate thanks to the Navigable Waters Protection Rule the U.S. Environmental Protection Agency and Department of the Army signed Jan. 23. This rule replaces the 2015 Waters of the U.S.  (WOTUS) Rule, which the agencies repealed last fall.

“The Navigable Water Protection Rule is truly a victory for states, landowners and farmers across this country. It will make it easy to understand where it applies,” EPA Region 4 Administrator Mary S. Walker said during a press conference held at the Georgia Department of Agriculture on Jan. 28.

Repeal of the 2015 WOTUS rule came after years of public outcry that the federal government was trying to regulate bodies of water that Congress never intended to fall under the federal jurisdiction of the Clean Water Act such as ephemeral streams and farm ponds.  President Trump issued an executive order in February 2017 for the agencies to review the 2015 WOTUS rule. 

Under the new rule, four categories of water may be regulated under the Clean Water Act as waters of the U.S.: territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters.

Walker said Georgia examples of these categories are: traditional navigable waters - the Atlantic Ocean and the Chattahoochee River; perennial/intermittent tributary – Peachtree Creek in Atlanta, which flows into the Chattahoochee; lakes, ponds, impoundments - Carters Lake in Ellijay; and wetlands – wetlands adjacent to the first three categories of water.

The new rule also lists 12 categories of water that don’t fall under federal jurisdiction. These include: groundwater; ephemeral streams, swales, gullies, rills and pools that only contain water due to rain or snow; farm, irrigation, stock watering and log cleaning ponds; most farm and roadside ditches; and prior converted cropland.

The EPA and Corps will continue to exercise jurisdiction over water that falls under the four categories considered to be waters of the U.S. The rule also maintains strict protections for drinking water and doesn’t loosen federal protection against pollutants entering waterways.

“Georgia Farm Bureau is grateful the Environmental Protection Agency and Department of the Army have adopted a rule that abides by the original intent of the Clean Water Act,” Georgia Farm Bureau President Gerald Long said. “The Navigable Waters Protection Rule clearly states the four categories of water that can be federally regulated and the twelve that cannot, which gives farmers clarity as they manage water on their farms.”

Visit www.gfb.ag/NWPR to learn more.