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USA - Once Again, Definition of Navigable Waters Challenged in Courts

In November, the EPA asked the 10th Circuit Court of Appeals in Colorado to restore its definition of waters that are protected by the Clean Water Act (CWA) after it was struck down by a federal judge at the request of the state of Colorado.

The EPA finalized a revised definition of “waters of the United States” (WOTUS) under the CWA in April that included four categories of jurisdictional waters:

  • “The territorial seas and traditional navigable waters,”
  • “Perennial and intermittent tributaries to those waters,”
  • “Certain lakes, ponds, and impoundments,” and
  • “Wetlands adjacent to jurisdictional waters.”

The final definition “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,” according to the EPA. “Congress, in the Clean Water Act, explicitly directed the Agencies to protect ‘navigable waters.’ The Navigable Waters Protection Rule regulates the nation’s navigable waters and the core tributary systems that provide perennial or intermittent flow into them.”

In July, final changes to the rule were published by the EPA to implement section 401 of the CWA that many characterized as gutting a 50-year history of state and tribal water quality regulation.

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