Waters of the US Rule Finalized

May 27, 2015 -- The EPA administrator signed the final rule redefining jurisdictional “Waters of the US” under the Clean Water Act and EPA and Army Corps jurisdiction under the Clean Water Act. The final rule, now referred to as the Clean Water Rule, will be published in the Federal Register within 2 to 3 week of the signing and will be effective 60 days after it is published.
Protection for many of the nation’s streams and wetlands has been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006. The Clean Water Rule more precisely defines what is under EPA and the Army Corps jurisdiction and what waters are not under their jurisdiction. EPA and the Army Corps estimate about a 16% increase in jurisdictional waters as a result of the final rule. The final rule does not consider groundwater as a “water” of the United States, staying consistent with the proposed rule.
The following summary information (along with more details on the Clean Water Rule) can be found at:
What the Clean Water Rule Does

  • Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
  • Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
  • Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
  • Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
  • Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.
  • Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.

What the Clean Water Rule Does Not Do

  • Protect any types of waters that have not historically been covered by the Clean Water Act.
  • Add any new requirements for agriculture.
  • Interfere with or change private property rights.
  • Regulate most ditches.
  • Change policy on irrigation or water transfers.
  • Address land use.
  • Cover erosional features such as gullies, rills and non-wetland swales.

Include groundwater, shallow subs