FACT SHEET
Navigable Waters Protection Rule
Rural America and the Navigable Waters Protection Rule
On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of
the Army (Army) fulfilled yet another promise of President Trump by finalizing the Navigable
Waters Protection Rule to define "waters of the United States" (WOTUS). For the first time, the
agencies are streamlining the definition so that it includes four simple categories of jurisdictional
waters, provides clear exclusions for many water features that traditionally have not been
regulated, and defines terms in the regulatory text that have never been defined before. Congress,
in the Clean Water Act, explicitly directed the Agencies to protect "navigable waters." The
Navigable Waters Protection Rule regulates these waters and the core tributary systems that
provide perennial or intermittent flow into them. The final rule fulfills Executive Order 13788
and reflects legal precedent set by key Supreme Court cases as well as robust public outreach and
engagement, including pre-proposal input and comments received on the proposed rule.
The Navigable Waters Protection Rule protects the environment while respecting states,
localities, tribes, and private property owners. It clearly delineates where federal regulations
apply and gives state and local authorities more flexibility to determine how best to manage
waters within their borders. Assertions have been made that the new rule will reduce jurisdiction
over thousands of stream miles and millions of acres of wetlands. These assertions are incorrect
because they are based on data that is too inaccurate and speculative to be meaningful for
regulatory purposes. The final rule along with state, local, and tribal regulations and programs
provide a network of protective coverage for the nation's water resources.
THE FINAL RULE IS GOOD FOR RURAL AMERICA
•	The Navigable Waters Protection Rule gives landowners in rural America—including the
agricultural community—clarity, predictability, and consistency under the Clean Water Act
to understand where federal jurisdiction applies and where it does not.
•	This straightforward regulation continues to protect the nation's navigable waters while
reducing bureaucratic barriers to agricultural production and growth and helping farmers and
ranchers feed our nation and manage their land.
•	The Navigable Waters Protection Rule provides a common-sense approach to the regulation
of waters and implementation of the "waters of the United States" definition and preserves
and protects the primary authority of states and localities over land and water resources
within their borders.
•	The agencies received many comments from the agricultural community on the proposed rule
and made certain updates based on that and other stakeholder feedback.
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THIS FINAL RULE IMPROVES REGULATORY CLARITY FOR KEY
AGRICULTURAL WATERS AND FEATURES
Ditches
•	The agencies recognize that the regulatory status of ditches has long created confusion. For
the first time, the agencies have provided a definition of "ditch" to mean a constructed or
excavated channel used to convey water.
•	Under this final rule, upland ditches, regardless of flow, do not fall within the scope of the
Clean Water Act.
•	Only certain ditches are covered under the final rule, including:
o Ditches—such as the Erie Canal—are considered traditional navigable waters where
they meet the terms of that definition,
o Ditches may be considered tributaries where they satisfy the flow conditions of the
"tributary" definition and either were constructed in or relocate a tributary or were
constructed in an adjacent wetland and provide perennial or intermittent surface water
flow to a traditional navigable water in a typical year.
•	Consistent with longstanding agency practice, the burden of proof lies with the agencies to
demonstrate whether a ditch relocated a tributary or was constructed in a tributary or an
adjacent wetland. Absent such evidence, the agencies will determine the ditch is non-
jurisdictional.
Prior Converted Cropland
•	In the final rule, the agencies are maintaining the longstanding exclusion for prior converted
cropland.
•	Under prior practice, the agencies would apply two different tests to evaluate whether a
parcel of land was prior converted cropland. The final rule includes a single, clear test that
the agencies will use to evaluate whether the prior converted cropland exclusion applies to
agricultural land.
•	This rule represents the first time the agencies are promulgating regulatory language to
clarify the meaning of "prior converted cropland" for Clean Water Act purposes.
•	Under the final rule, the prior converted cropland exclusion ceases to apply when the
cropland is abandoned {i.e., not used for, or in support of, agricultural purposes in the
immediately preceding five years). Those lands are then only subject to the Clean Water Act
if or when they have reverted to wetlands and meet the conditions of the "adjacent wetlands"
category under this final rule.
•	The agencies clarify in the final rule preamble what they mean by "agricultural purposes"
that will maintain a prior converted cropland exclusion:
o Land use that makes the production of an agricultural product possible is "for or in
support of agricultural use."
o Cropland that is left idle or fallow for conservation or agricultural purposes for any
period or duration of time remains in agricultural use, and therefore maintains the
prior converted cropland exclusion, such as cropland enrolled in long-term and other
conservation programs administered by the federal government or by state and local
agencies that prevents erosion or other natural resource degradation. The United
States Department of Agriculture (USD A) supports a wide range of conservation
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programs for agricultural land. For more information, see
https://www.fsa.usda.gov/programs-and-services/conservation-programs/.
o There are many uses that may be considered "for or in support of agricultural
purposes," including irrigation tailwater storage; crawfish farming; cranberry bogs;
nutrient retention; and idling land for soil recovery following natural disasters like
hurricanes and drought,
o Conservation practices are critical to the success of agricultural systems across the
country and are implemented "for or in support of agricultural purposes."
•	The agencies will work closely with USD A and will consider documentation from other
federal, state, or local agencies to determine whether cropland qualifies for the prior
converted cropland exclusion.
Artificial Lakes and Ponds and Artificially Irrigated Areas
•	Under the final rule, artificial lakes and ponds, including water storage reservoirs and farm,
irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in
non-jurisdictional waters are not jurisdictional.
•	An artificial lake or pond is excluded under the final rule even if it satisfies the rule's
definition of "lakes, ponds, and impoundments of jurisdictional waters," so long as it was
constructed or excavated in upland or in non-jurisdictional waters and is not a jurisdictional
impoundment. In other words, artificial lakes and ponds that are constructed in upland or
non-jurisdictional waters are excluded even where they may have a surface water connection
to a downstream jurisdictional water in a typical year.
•	The final rule also excludes artificially irrigated areas, including fields flooded for
agricultural production, that would revert to upland should application of irrigation water to
that area cease.
Additional Exclusions from "Waters of the United States"
•	Under the final rule, waterbodies not included in the four categories of "waters of the United
States" are not jurisdictional, which provides additional clarity.
•	Groundwater, including groundwater drained through subsurface drainage systems, such as
tile drains in agricultural land, is excluded under the rule.
•	Ephemeral features common across the landscape, such as ephemeral streams, swales,
gullies, and rills, are also excluded.
Activity Exemptions Under Clean Water Act Section 404(f)
•	This rule does not change the exemptions under the Clean Water Act section 404(f), relieving
farmers and ranchers of the need for authorization for many types of agricultural discharges
into "waters of the United States."
•	The agencies note that Congress expressly excluded the construction and maintenance of
irrigation ditches and the maintenance of drainage ditches from permitting requirements
under sections 301, 402, and 404 of the Clean Water Act. Discharges of dredged or fill
material associated with those exempt purposes into a ditch constructed in an adjacent
wetland are therefore exempt from permitting, even if those materials are transported down
the ditch to jurisdictional waters.
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