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USEPA and Army Corps of Engineers Release Final Clean Water Rule

On May 27, 2015, the United States Environmental Protection Agency ("USEPA") and the United States Army Corps of Engineers ("USACE") released their long-awaited final rule defining the scope of "waters of the United States" subject to federal jurisdiction and oversight under the federal Clean Water Act ("CWA").  


Formerly known as the "waters of the United States" (or "WOTUS") rule, the final rule has been "rebranded" as the Clean Water Rule as part of USEPA's marketing campaign. Although characterized by USEPA and USACE as an effort to clarify the existing scope of the CWA and simplify jurisdictional determinations in the wake of confusing United States Supreme Court precedent, an initial review reveals that the Rule constitutes a significant expansion of regulatory authority and asserts jurisdiction over streams that, according to the agencies' press release, "lacked clear protection before the Clean Water Rule"-namely, various ephemeral and headwater streams. By the agencies' own estimation, the Clean Water Rule will result in an increase in positive jurisdictional determinations of between 2.84 and 4.65 percent annually.

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