What Is in the Final WOTUS Rule?
What Is In the Final Rule?
The 2023 conforming rule jurisdictional features are:
- Traditional navigable waters
- Currently used, or were susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide
- Territorial seas
- Interstate waters
- Impoundments of TNWs
- Tributaries
- Relatively permanent, standing or continuously flowing bodies of water
- Adjacent Wetlands
- Wetlands adjacent to TNWs
- Relatively permanent, standing, or continuously flowing body of water with a continuous surface connection to a TNW or impoundment
- Intrastate Lakes and Ponds
- Relatively permanent, standing or continuously flowing body of water with a continuous surface connection to TNWs and relatively permanent tributaries
The conforming rule does not change any exclusions from the 2023 rule. The exclusions are:
- Waste Treatment Systems (WTS), including ponds or lagoons
- Prior Converted Croplands (PCCs) designated by the Secretary of Agriculture
- Ditches, including roadside ditches, excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water
- Artificially irrigated areas that would revert to dry land if the irrigation ceased
- Artificial lakes or ponds created by excavating or diking dry land
- Artificial reflecting or swimming pools
- Waterfilled depressions
- Swales and erosional features
Definitions:
- The conforming rule has changed how it defines “adjacent” to mean having a continuous surface connection.
- The conforming rule lacks a definition of relatively permanent and relies on the conflicting preamble to the 2023 rule.
- The conforming rule lacks a definition of “continuous surface connection.”