Administration Releases New Waters of the U.S. Rule, Will Provide Clarity on Protections for Federal Waters

On Jan. 23, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers finalized an AGC-supported rule to define “waters of the United States” – providing clarity when a federal permit is needed for work in or near federal waters. The new Navigable Waters Protection Rule better identifies federal waters, respects states’ primary role in land use and pollution prevention, and balances major case law from the last couple of decades.

In brief, the rule extends federal protection to territorial seas and traditional navigable waters (TNWs); tributaries to TNWs; lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to jurisdictional waters. Ditches, an issue of concern for the construction industry, are jurisdictional only where they meet the definition of jurisdictional tributaries or were constructed in a jurisdictional wetland. The rule excludes ephemeral features and groundwater as well as broad categories of stormwater control features, water-filled depressions, and waste treatment systems and their conveyances, among others.  Click here for an overview of the rule, including what is jurisdictional and what is excluded under the rule.

The rule goes into effect 60 days from its publication in the Federal Register. Click here to read the pre-publication of the rule and fact sheets.

For more information, contact Melinda Tomaino at or (703) 837-5415.