Final Rule: Revised Definition of Waters of the United States

The Federal Register notice publishing the final rule revising the definition of Waters of the United States.

The 2022 rule is based on the pre-2015 regulations and codifies both the” significant nexus” and “relatively permanent” standards proposed in Rapanos. The 2022 rule also includes definitions of “adjacent” and “significant effect,” and codifies a variety of longstanding WOTUS exclusions. The text of the rule is divided into three parts: jurisdictional waters, exclusions, and definitions.

In the 2022 WOTUS rule, EPA identifies five (5)categories of waters that will fall under federal jurisdiction. Those categories are:

• Traditional navigable waters that currently are, or were used in the past, or could be used in the future for interstate for foreign commerce, including all waters that are subject to the ebb and flow of the tide; the territorial seas; and interstate waters, including interstate wetlands (collectively, “traditional navigable waters”)
• Impoundments of waters otherwise identified as a WOTUS, except for impoundments of waters identified under the fifth category of WOTUS (collectively, “impoundments”)
• Tributaries of traditional navigable waters or impoundments that are either: relatively permanent, standing or continuously flowing bodies of water; or that alone or in combination with similarly situated waters in the region significantly affect the chemical, physical, or biological integrity of traditional navigable waters (collectively, “tributaries”)
• Wetlands adjacent to any of the following: traditional navigable waters; a relatively permanent, standing or continuously flowing impoundment or tributary; an impoundment or tributary if the wetlands either alone or in combination with similarly situated waters in the region significantly affect the chemical, physical, or biological integrity of a traditional navigable water (collectively, “adjacent wetlands”)
• Interstate lakes and ponds, streams, or wetlands that do not fall into any of the above categories provided the water is either: relatively permanent, standing or continuously flowing and shares a surface connection with a traditional navigable water, impoundment, or tributary; or on its own or in combination with similarly situated waters in the region significantly affects the chemical, physical, or biological integrity of a traditional navigable water (collectively, “jurisdictional interstate waters”)