{"id":8624,"date":"2020-09-28T01:40:24","date_gmt":"2020-09-28T06:40:24","guid":{"rendered":"https:\/\/agrilife.org\/texasaglaw\/?p=8624"},"modified":"2026-04-17T15:18:33","modified_gmt":"2026-04-17T20:18:33","slug":"navigable-waters-protection-rule-aka-the-new-wotus-rule","status":"publish","type":"post","link":"https:\/\/agrilife.org\/texasaglaw\/2020\/09\/28\/navigable-waters-protection-rule-aka-the-new-wotus-rule\/","title":{"rendered":"Navigable Waters Protection Rule (aka the New WOTUS Rule)"},"content":{"rendered":"

Disclaimer–This blog post is really detailed.\u00a0 If you’re not into all the nerdy legal technicalities, I’d read the Background, Summary of WOTUS Rule v. NWPR, and What Happens Now and go on about your day.<\/em><\/p>\n

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If you have been around for a while, you know we have been following the saga surrounding the definition of “Waters of the United States” or “WOTUS” for several years.\u00a0 On April 21, 2020, the Environmental Protection Agency published the Navigable Waters Protection Rule (NWPR), the newest regulatory definition of WOTUS.\u00a0 [Read Rule here<\/a>.]\u00a0 The NWPR became effective on June 22, 2020 across the United States, with the exception of Colorado, where a federal judge entered an injunction pending litigation.<\/p>\n

For a deeper dive into the NWPR, click here<\/a> for a recent podcast episode featuring Jim Bradbury walking us through the scope of the Rule and the potential implications for agriculture.<\/p>\n

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Photo by Suhel Nadaf on Unsplash<\/em><\/p><\/div>\n

Background<\/strong><\/p>\n

The Clean Water Act, passed in 1972, is intended to restore and maintain the chemical, physical, and biological integrity of the nation\u2019s waters. \u00a0With regard to agriculture, the two most important sections are Section 402 (dealing with point source discharges) and Section 404 (dealing with dredge and fill).\u00a0 The Clean Water Act provides federal regulatory jurisdiction over \u201cwaters of the United States,” but the meaning of “waters of the United States” was left undefined by the Act.\u00a0 For decades, courts have wrestled with the proper scope of these words.<\/p>\n

In 1985, the Court broadly construed the phrase as including wetlands adjacent to traditional navigable waters in Michigan in\u00a0United States v. Riverside Bayview Homes.<\/em>\u00a0 In 2001, the issue was again before the Court in\u00a0Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers.\u00a0\u00a0<\/em>There, the Court found that isolated, non-navigable intrastate ponds used by migratory birds were not covered by the CWA.\u00a0 In making this finding, the Court stated that the difference between this case and\u00a0Riverside Bayview Homes<\/em>\u00a0was the lack of a \u201csignificant nexus\u201d between the ponds and the navigable waters.\u00a0 Finally, in 2006, the Supreme Court decided (in a plurality opinion on 4 justices)\u00a0Rapanos v. United States<\/em>, holding that waters of the United States covered \u201crelatively permanent, standing or continuously flowing bodies of water\u201d connected to navigable waters.\u00a0 The opinion noted that this did not necessarily exclude streams, rivers or lakes that might go dry in extraordinary circumstances like a drought.\u00a0 A concurring opinion by Justice Kennedy would have defined \u201cwaters of the United States\u201d by applying the \u201csignificant nexus standard.\u201d<\/p>\n

In 2015, the Environmental Protection Agency (EPA) and US Army Corps of Engineers (COE) under the Obama Administration passed a regulation, referred to as the WOTUS Rule, defining “waters of the United States.” Numerous lawsuits filed and resulted in various injunctions around the country.\u00a0 In 2017, President Trump issued an Executive Order instructing the agencies to “rescind or revise” the 2015 definition and “consider interpreting” waters of the United States consistent with Justice Scalia’s opinion in\u00a0Rapanos<\/em>. [Read prior blog post here<\/a>.]<\/p>\n

The EPA has since rescinded the 2015 rule and has now published the NWPR.\u00a0 Numerous lawsuits have been filed around the country challenging the rule.\u00a0 [Click here<\/a> for a summary of pending litigation from the National Ag Law Center.]<\/p>\n

Navigable Waters Protection Rule\u00a0<\/strong><\/p>\n

There are essentially three sections to the rule: (1) Jurisdictional waters; (2) Non-jurisdictional waters; and (3) Definitions.<\/p>\n

(1) Jurisdictional Waters<\/span><\/p>\n

The NWPR provides that “waters of the United States” are defined as:<\/p>\n

(i) The territorial seas, and waters currently used, previously used, or may be susceptible to use in interstate or foreign commerce, including waters subject to the ebb and flow of the tide;<\/p>\n

(ii) Tributaries;<\/p>\n

(iii) Lakes, ponds, and impoundments of jurisdictional waters; and<\/p>\n

(iv) Adjacent wetlands.<\/p>\n

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As with the prior WOTUS rule, and most legal issues, the devil is in the definitions.\u00a0 The NWPR includes the following definitions applicable to jurisdictional waters:<\/p>\n