On Thursday, May 27, the Obama Administration released its controversial final rule on what constitutes a “water of the U.S.” jurisdictional under the Clean Water Act (CWA). The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced the rule and claimed to be setting “brighter lines” for determining the scope of the CWA in their final rule to be used in determining regulated waters, aiming to address concerns about uncertainty in the proposed version of the rule, such as clarifying when waters have a “significant nexus” triggering CWA jurisdiction.
According to the final rule, waters within a 100-year floodplain of other waters would be subject to case -by-case jurisdictional analysis, as would several types of waters where such an analysis is needed to determine a “significant nexus” to jurisdictional waters. Many other water features, such as ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary, groundwater, erosional features, and stormwater control features would be excluded from CWA jurisdiction. We are still reviewing the final rule and will have more details later this week. The rule and EPA press release/fact sheets can be found at www.epa.gov/cleanwaterrule.