Navigable Waters Protection Rule Mapping and the Navigable Waters Protection Rule


FACT SHEET

Navigable Waters Protection Rule

Mapping 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.

EXISTING TOOLS CANNOT ACCURATELY' MAP THE SCOPE OF CLEAN WATER

ACT JURISDICTION

•	Due to existing data and mapping limitations, it is not possible to accurately determine the
full scope of waters that are "in" or "out" under any WOTUS definition.

•	When the Navigable Waters Protection Rule was proposed, some claimed that 51% of the
nation's wetlands and more than 18% of the nation's streams would lose CWA protection.

•	These estimates are highly unreliable and are based on stream and wetland datasets that were
not created for regulatory purposes and which have significant limitations.

•	Purported statistics of jurisdictional changes are unreliable and inherently inaccurate, in part
because:

o there are currently no comprehensive datasets through which the agencies can depict

the universe of "waters of the United States," and
o the datasets used to generate these figures - the U.S. Geological Survey (USGS)
National Hydrography Dataset (NHD) and the U.S. Fish and Wildlife Service (FWS)
National Wetlands Inventory (NWI) - were not developed for regulatory purposes
and have significant technical limitations that prevent the agencies from using them to
identify CWA jurisdiction, regardless of the regulatory definition of "WOTUS."

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•	While the NHD and NWI are the most comprehensive hydrogeographic datasets mapping
waters and wetlands in the United States and are useful resources for a variety of federal
programs, including CWA programs, they cannot be used as standalone tools to determine
the scope of CWA jurisdiction.

•	Importantly, the Navigable Waters Protection Rule covers tributaries with intermittent flow
and excludes other features with only ephemeral flow, but the NHD—even at high
resolution—cannot differentiate between intermittent or ephemeral flow in most parts of the
country.

•	Further, the NWI uses a different definition of "wetlands" than the agencies' regulatory
definition of "wetlands." The NWI also does not contain information sufficient to evaluate
whether those mapped wetlands meet the definition of "adjacent wetlands" under previous
regulations or under the final rule. For example, the NWI does not identify whether a wetland
is inundated by the nearest jurisdictional water.

•	The NHD has other limitations that prevent its use for accurately mapping the scope of
jurisdictional waters under the CWA, including:

o errors of omission (e.g., failure to map streams that exist on the ground),
o errors of commission (e.g., mapping streams that do not exist on the ground),
o horizontal positional inaccuracies,

o misclassification of stream flow permanence, particularly in headwaters, and
o inconsistent mapping in different parts of the country.

•	The NWI also has additional limitations, including:

o errors of omission (e.g., failure to map wetlands that exist on the ground),
o errors of commission (e.g., mapping wetlands that do not exist on the ground), and
o potentially inaccurate wetland boundary identification.

•	While early in the regulatory process the agencies attempted to use the NHD and NWI to
assess the potential change in CWA jurisdiction as a result of the proposed rule, the agencies
ultimately concluded that the limitations of these datasets preclude their use for quantifying
the extent of waters whose jurisdictional status could change under the proposal.

•	Due to these limitations, which were confirmed during the public comment period for the
proposed rule and an extensive evaluation by the agencies, the agencies did not use the NHD
or NWI to assess potential changes in jurisdiction as a result of the final rule.

IT IS HI! CONSISTENT POSITION OF THE AGENCIES THAT NO MAPS EXIST

THAT IDENTIFY THE SCOPE OF "WOTUS"

•	It has been the consistent position of the agencies that the NHD and the NWI do not
represent the scope of waters subject to CWA jurisdiction.

•	Of note, the agencies did not use these maps to estimate changes in jurisdiction when the
2003 SWANCC Guidance was issued, when the 2008 Rapanos Guidance was issued, or when
the 2015 Rule was promulgated.

•	As the agencies promulgated the 2015 Rule, EPA stated at the time that they "do not have
maps depicting waters of the United States under either present regulatory standards or those

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in the final [2015] rule."1 This remains true today; the agencies do not have maps of WOTUS
under the 2015 Rule, under the 2019 Rule, or under this final rule.

• In 2015, former EPA Administrator McCarthy testified before Congress2 about the NHD and
the NWI—the very same datasets some have used to inaccurately estimate changes in
jurisdiction under the proposed Navigable Waters Protection Rale. According to
Administrator McCarthy's testimony, those datasets:

o were "not used to determine jurisdiction and not intended to be used for jurisdiction;"
o "are not relevant to the jurisdiction of the 'waters of the U.S.;'"
o "are not consistent with how we look at the jurisdiction of the Clean Water Act;" and
o have "nothing to do, as far as I know, with any decision concerning jurisdiction of the
Clean Water Act."

• Under the previous administration, EPA Office of Water Acting Assistant Administrator
Nancy Stoner wrote to the House Committee on Science, Space, and Technology that "no
national or statewide maps have been prepared by any agency, including EPA, showing the
scope of waters subject to the Clean Water Act.... To develop maps of jurisdictional waters
requires site-specific knowledge of the physical features of water bodies, and these data are
not available[,]"3

• Former EPA Office of Water Deputy Assistant Administrator Ken Kopocis wrote a similar
letter to the House Science Committee, stating: "These [USGS] maps were not prepared for
the purpose of, nor do they represent, a depiction of the scope of waters protected under the
Clean Water Act."4

• And in 2014, an EPA blog post entitled "Mapping the Truth" stated, "While these [U.S.
Geological Survey and Fish & Wildlife Service] maps are useful tools for water resource
managers, they cannot be used to determine Clean Water Act jurisdiction - now or ever"5

1 See Response to Comments for the Clean Water Rale, Clean Water Rule Comment
Compendium Topic 8: Tributaries, Docket ID. No. EPA-HQ-OW-2011-0880-20872, p. 442,
https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20872.

2 Impact of the Proposed "Waters of the United States" Rule on State and Local Governments
Before the H. Comm. on Transp. & Infrastructure and the S. Comm. on Env't & Pub. Works,
114th Cong. (2015) (testimony of Gina McCarthy, Adm'r, EPA).

3 Letter from Nancy Stoner, Acting Assistant Adm'r, EPA Office of Water, to Lamar Smith,
Chairman, Comm. on Science, Space, and Tech., U.S. House of Representatives (July 28, 2014)
(emphasis added), available at https://web.archive.org/web/

20180919173837/https://science.house.gov/sites/republicans.science.house.gov/files/documents/
epa releases maps letter.pdf.

4 Letter from Kenneth J. Kopocis, Deputy Assistant Adm'r, EPA Office of Water, to Lamar
Smith, Chairman, Comm. on Science, Space, and Tech., U.S. House of Representatives (Jan. 8,
2015)

5 U.S. EPA, Mapping the Truth, The EPA Blog (Aug. 28, 2014), available at
https://blog.epa.gov/2014/08/28/mapping-the-truth/

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MAPPING THE FUTURE

•	The agencies acknowledge that prior Administrations have taken the position that "maps of
all the jurisdictional or non-jurisdictional waters are not feasible," and that maps "cannot be
used to determine Clean Water Act jurisdiction - now or ever."

•	Rather than declaring the task too difficult, however, the agencies under this Administration
have decided to initiate development of state-of-the-art geospatial data tools through federal,
state, and tribal partnerships to provide an enhanced, publicly-accessible platform for critical
CWA information, such as:

o the location of federally jurisdictional waters;
o the applicability of state and tribal water quality standards;
o permitted facility locations;
o impaired waters; and
o other significant features.

•	For federal, state and tribal agencies, such geospatial datasets could improve the
administration of CWA programs and attainment of water quality goals.

•	Geospatial datasets and resulting future maps that indicate waters likely subject to federal
jurisdiction could allow members of the regulated community to more easily and quickly
know if a water or wetland is a WOTUS and regulated under the CWA.

•	To help inform this effort, the agencies are engaging with stakeholders and our federal
partners in a number of ways to make progress on these WOTUS mapping goals, including
forming a work group of participants from other federal agencies with interest and expertise
in geospatial mapping.

•	Maps of CWA jurisdiction, when fully developed, will promote greater regulatory certainty,
relieve some of the regulatory burden associated with determining the need for a permit, and
play an important part in helping to attain the goals of the CWA.

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