FACT SHEET
Navigable Waters Protection Rule
Overview of 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 REVISED DEFINITION
The Navigable Waters Protection Rule outlines four clear categories of waters that are
considered "waters of the United States." These four categories protect the nation's navigable
waters and the core perennial and intermittent tributary systems that flow into those waters.
Territorial seas and traditional navigable waters (TNVVs)
• Under the final rule, the territorial seas and traditional navigable waters include large
rivers and lakes—such as the Mississippi River, the Great Lakes, Chesapeake Bay, and
the Erie Canal—and tidally-influenced waterbodies used in interstate or foreign
commerce.
Tributaries
• Under the final rule, tributaries include perennial and intermittent rivers and streams that
contribute surface flow to traditional navigable waters in a typical year—such as College
Creek, which flows into the James River near Williamsburg, Virginia.
• These naturally occurring surface water channels must flow more often than just after a
single precipitation event—that is, tributaries must be perennial or intermittent.
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• Tributaries can connect to a traditional navigable water or territorial sea in a typical year
either directly or through other "waters of the United States," through channelized non-
jurisdictional surface waters, through artificial features (including culverts and
spillways), or through natural features (including debris piles and boulder fields).
• Ditches are to be considered tributaries only where they satisfy the flow conditions of the
perennial and intermittent tributary definition and either were constructed in or relocate a
tributary or were constructed in an adjacent wetland and contribute perennial or
intermittent flow to a traditional navigable water in a typical year.
Lakes, ponds, and impoundments of jurisdictional waters
• Lakes, ponds, and impoundments of jurisdictional waters, such as Lake Pepin in
Minnesota and Lake Travis in Texas, are jurisdictional where they contribute surface
water flow to a traditional navigable water or territorial sea in a typical year either
directly or through other "waters of the United States," through channelized non-
jurisdictional surface waters, through artificial features (including culverts and
spillways), or through natural features (including debris piles and boulder fields).
• Lakes, ponds, and impoundments of jurisdictional waters are also jurisdictional where
they are flooded by a "water of the United States" in a typical year, such as certain oxbow
lakes that lie along the Mississippi River.
Adjacent wetlands
• Wetlands that physically touch other jurisdictional waters are "adjacent wetlands," such
as Horicon Marsh along the Rock River in Wisconsin.
• Wetlands separated from a "water of the United States" by only a natural berm, bank or
dune are also "adjacent."
• Wetlands inundated by flooding from a "water of the United States" in a typical year are
"adjacent."
• Wetlands that are physically separated from a jurisdictional water by an artificial dike,
barrier, or similar artificial structure are "adjacent" so long as that structure allows for a
direct hydrologic surface connection between the wetlands and the jurisdictional water in
a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial
feature.
• An adjacent wetland is jurisdictional in its entirety when a road or similar artificial
structure divides the wetland, as long as the structure allows for a direct hydrologic
surface connection through or over that structure in a typical year.
The final rule also outlines what are not "waters of the United States." The following
waters/features are not jurisdictional under the rule:
• Waterbodies that are not included in the four categories of "waters of the United States"
listed above—this distinction will provide clarity that where a water or feature is not
identified as jurisdictional in the final rule, it is not a jurisdictional water under the Clean
Water Act.
• Groundwater, including groundwater drained through subsurface drainage systems, such
as drains in agricultural lands.
• Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools.
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• Diffuse stormwater run-off and directional sheet flow over upland.
• Many farm and roadside ditches.
• Prior converted cropland retains its longstanding exclusion, but is defined for the first
time in the final rule. The agencies are clarifying that this exclusion will cease to apply
when cropland is abandoned {i.e., not used for, or in support of, agricultural purposes in
the immediately preceding five years) and has reverted to wetlands.
• Artificially irrigated areas, including fields flooded for agricultural production, that
would revert to upland should application of irrigation water to that area cease.
• 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.
• Water-filled depressions constructed or excavated in upland or in non-jurisdictional
waters incidental to mining or construction activity, and pits excavated in upland or in
non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel.
• Stormwater control features excavated or constructed in upland or in non-jurisdictional
waters to convey, treat, infiltrate, or store stormwater run-off
• Groundwater recharge, water reuse, and wastewater recycling structures, including
detention, retention and infiltration basins and ponds, that are constructed in upland or in
non-jurisdictional waters.
• Waste treatment systems have been excluded from the definition of "waters of the United
States" since 1979 and will continue to be excluded under the final rule. Waste treatment
systems are defined for the first time in this rule.
o A waste treatment system includes all components, including lagoons and
treatment ponds (such as settling or cooling ponds), designed to either convey or
retain, concentrate, settle, reduce, or remove pollutants, either actively or
passively, from wastewater or stormwater prior to discharge (or eliminating any
such discharge).
FEDERAL-STATE RELATIONSHIP
• With this final rule, there is a clear distinction between federal waters and waters subject
to the sole control of the states, their governmental subdivisions, and tribes.
• The Clean Water Act envisions an approach whereby states, localities, tribes, and the
federal government work in partnership to protect the nation's waters from pollution.
• The final rule is in line with that intent and appropriately identifies waters that should be
subject to federal regulation under the Clean Water Act.
• Many states, localities, and tribes have existing regulations and programs that apply to
waters within their borders, whether or not they are considered "waters of the United
States." The federal government remains committed to helping all states and tribes
enhance their capacity to regulate, protect, and restore their waters.
• Together, the final revised definition and existing state, local, and tribal regulations and
programs will provide a network of protective coverage for the nation's water resources.
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EFFECTS OF THE FINAL RULE
• The Navigable Waters Protection Rule provides clarity, predictability, and consistency so
that regulators and the public can understand where the Clean Water Act applies and
where it does not. Such straightforward regulations will continue to protect the nation's
navigable waters, help sustain economic growth, and provide greater regulatory certainty.
• The role of federal government under the Clean Water Act ultimately derives from
Congress' commerce power over navigation. The Clean Water Act explicitly directs 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 agencies developed an illustrative economic analysis for the final rule that looks at
the potential costs, benefits, and economic impacts of the revised definition of "waters of
the United States" relative to the October 2019 "Definition of 'Waters of the United
States'—Recodification of Pre-Existing Rules" final rule baseline practice.
• The agencies have identified, where possible, how the final rule may affect categories of
water resources across the country and potential effects on Clean Water Act programs.
The agencies have also highlighted longstanding and continuing data limitations that
prevents them from developing quantitative national estimates of impacts for most Clean
Water Act programs.
• The final rule becomes effective 60 days from publication in the Federal Register.
KEY CHANGES FROM PROPOSAL IN RESPONSE TO COMMENTS
• Ditches and impoundments are no longer separate categories of jurisdictional waters.
• The preamble to the final rule provides additional useful clarification on traditional
navigable waters.
• In the final rule, the agencies have clarified and simplified the types of connections to the
perennial and intermittent tributary network that can make lakes, ponds, and
impoundments jurisdictional.
• Perennial and intermittent tributaries upstream of ephemeral reaches are jurisdictional
when they have a surface water connection to a downstream jurisdictional water in a
typical year. Under the proposal, ephemeral reaches would have severed jurisdiction for
upstream waters.
• The final rule expands and clarifies the factors that determine whether wetlands are
considered adjacent, and thus covered by the Clean Water Act. Under the proposal,
wetlands physically seperated by a natural or artificial barrier from another jurisdictional
water would not have been subject to Clean Water Act jurisdiction. Many of these
wetlands will be covered by the final rule.
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FOR MORE INFORMATION
• See the photo appendix to this Overview Factsheet for illustrative examples of applying
the Navigable Waters Protection Rule: https://www.epa.gov/nwpr/navigable-waters-
protection-rule-factsheets
• Additional fact sheets along with copies of the final rule and supporting analyses are
available on EPA's website at https://www.epa.gov/nwpr.
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