On May 27, 2015, the EPA  and the U.S. Army Corps of Engineers issued their final version of the Clean Water Rule, which clarifies federal jurisdiction over bodies of water under the Clean Water Act (CWA).[1] More specifically, the rule clarifies the scope of “waters of the United States”, sometimes referred to as “WOTUS,” under the CWA. The final rule will become effective 60 days after it is published in the Federal Register.

As we noted in our post last year about the proposed version of the rule, the agencies and courts have struggled to interpret the scope of WOTUS since the Supreme Court’s 4-4-1 Rapanos decision.[2] The result of that decision has often been the use of what some have criticized as an unclear and inconsistent “significant nexus” test to determine federal jurisdiction on a case-by-case basis. With the newly announced rule, however, the agencies have attempted to clarify the scope of WOTUS, in part to limit the use of the “significant nexus” test and case-by-case determinations.
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