Clean Water Act Final Rule

Clarifying intended scope of adjacent wetlands jurisdiction.

On June 29, 2015, U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published the final rule purportedly clarifying the scope of the Federal Government’s jurisdiction over wetlands and waters under the Clean Water Act (CWA). The new CWA rule is scheduled to take effect on August 28, 2015.

In the 2006 Rapanos vs. U.S. opinions, several Supreme Court Justices encouraged the government to define its intended scope of adjacent wetlands jurisdiction. This new CWA rule attempts to clarify the scope by defining adjacency, tributary, and when seemingly isolated wetlands are to be considered in a significant nexus analysis.

Adjacent Wetlands / Waters

Automatically includes waters within 100 feet from the ordinary high water mark (OHWM) and also waters within the 100-year floodplain to a maximum of 1,500 feet of the OHWM.

Tributaries to Traditionally Navigable Waters

The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water that is characterized by the presence of the physical indicators of a bed and banks and an OHWM. A tributary can be a natural, man-altered or man-made water and includes waters such as rivers, streams, canals, and some ditches.

Isolated Waters

Includes specific waters that are “similarly situated”: prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they have a significant nexus.

The scope of jurisdiction in the rule appears to surpass the scope defined by Rapanos. As a result, lawsuits to block implementation of the rule have been filed by 28 states & several other entities. Jurisdictional Determinations pending approval or permit modifications filed after the August 28, 2015 implementation date are subject to the new CWA Final Rule. 

Notwithstanding what the EPA would like you to believe, the new Clean Water Act rule now requires more technical expertise than ever to understand.

Agencies & Code of Federal Regulations

Department of Defense, Department of the Army, Corps of Engineers
33 CFR Part 328 | Definition of Waters of the United States

Environmental Protection Agency
40 CFR Parts 110, 112, 116, et al.
Clean Water Rule: Definition of ‘‘Waters of the United States’’; Final Rule

Update: Federal Judge Blocks new CWA rule in 13 States