The EPA and USACE issued the final Clean Water Rule defining “Waters of the U.S.” on May 27, 2015 (40 CFR 230.3). The rule will become effective 60 days after the Federal Register publication, which is expected in mid-June.
The final Clean Water Rule stems from a proposed rule published in April 2014 by the EPA/USACE to clarify the scope of waters of the U.S. The proposed rule received over 1 million public comments. The EPA/USACE’s stated intent with the final rule is to increase Clean Water Act (section 404) predictability and consistency.
According to the rule, the EPA/USACE will not reopen existing approved jurisdictional determinations unless requested to do so by the applicant or unless new information warrants revision of the determination before the approved jurisdictional determination expiration period (typically five years). Approved jurisdictional determinations associated with issued permits and authorizations will be valid until the expiration date of the permit or authorization. Applicants seeking jurisdictional determinations after the Clean Water Rule becomes effective should expect the jurisdictional determination will be made consistent with the Clean Water Rule. It is assumed expired, approved jurisdictional determinations will be treated in a similar manner.
Visit the EPA Clean Water Rule website