Samuel Lee Lofland
On May 27, 2015, the prepublication version of the Final Rule, “Clean Water Rule: Definition of ‘Waters of the United States,’” was released. The Final Rule has a 197-page preamble to explain the eight-page rule. The Final Rule increases the jurisdictional scope of the CWA by expanding the definition of “Waters of the United States” to make tributaries and adjacent waters, even those that are intermittent or ephemeral, “per se jurisdictional without the need for a significant nexus determination.” Preamble at p. 86. 
The EPA and Army Corps of Engineers received over 1 million comments on the Proposed Rule (released April 21, 2014, with the comment period ending November 14, 2014). “This final rule reflects the over 1 million public comments on the proposal, the substantial majority of which supported the proposed rule, as well as input provided through the agencies’ extensive public outreach effort, which included over 400 meetings nationwide with states, small businesses, farmers, academics, miners, energy companies, counties, municipalities, environmental organizations, other federal agencies, and many others.” Preamble at p. 14. 
The Preamble, and EPA materials explaining the Final Rule, repeatedly assert that the “scope of jurisdiction in [the Final Rule] is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.” See e.g. Id. at p. 3 and 188. However, the Final Rule has the opposite impact and will pose significant burdens on the regulated community, particularly those in residential and commercial development, the agriculture industry, the mining industry, and local governments. The Final Rule causes water bodies, such as canals and ditches with only remote and speculative hydrological connections to traditionally navigable and interstate waters, to become “jurisdictional waters” under the CWA for the first time.
FINAL RULE HIGHLIGHTS
The Preamble, along with the publicity campaign of the EPA, asserts that the Final Rule reduces the scope of the existing rule and provides stakeholders with clarity and certainty. For example, according to the Preamble “[t]he existing definition of ‘waters of the United States’ regulates all tributaries without qualification. The final rule protects only waters that have a significant effect on the integrity of traditional navigable waters, interstate waters, or the territorial seas.” Id. at p. 87. 
This characterization is disingenuous, as under the existing regime whether a specific water body is a tributary is determined on a case-by-case basis, with an analysis as to whether the particular water body has a “significant nexus” to a traditional navigable water, interstate water, territorial sea, or impoundment of the same.  Conversely, under the Final Rule, any water body that meets the definition of “tributary” is per se jurisdictional, and, thus, no analysis as to whether there is a “significant nexus” takes place. The new provisions regarding “tributaries” and “adjacent” waters in the Final Rule expands the scope of the CWA because it, per se, makes a water body jurisdictional if it is “connected” directly or indirectly to a traditional navigable water, interstate water, territorial sea, or impoundment of the same, even if the water body flows only on an intermittent or ephemeral basis.
The Final Rule includes some additional clarifications with respect to ditches and other types of waters which are, by rule, not jurisdictional. Notably, the Final Rule adds as an exception stormwater control features, erosional features, and clarifies the exceptions for depressions in dry land that become filled with water, artificial lakes and ponds, and groundwater. However, the number of exceptions is not nearly enough to curtail the expansion in scope of the CWA that the EPA and Army Corps have effectuated in their Final Rule.
One may posit, how can EPA and Army Corps have such a strong view regarding a “contraction” of their authority, whilst the stakeholders have a view that the Final Rule is an expansion of authority? The answer is the manner in which the EPA and Army Corps currently view their authority, which is all encompassing. See Preamble at p. 87. However, under the current regime, the EPA and Army Corps must, on a case-specific basis, prove each water body is within their jurisdiction under the CWA.  The case-specific determinations are time-consuming, costly, and do not always yield a result which reflects the expansive scope of the CWA held by the EPA and Army Corps. Therefore, by this Final Rule, EPA and Army Corps have, in one fell swoop, made thousands of water features jurisdictional, dispelling any requirement or burden they have to show that a particular water body, even ephemeral water bodies great distances from traditional navigable waters, interstate waters, or territorial seas, have a “significant nexus” to traditional navigable waters, interstate waters, or territorial seas.
Summarily, the Final Rule is fundamentally flawed, because it causes remote waters with only insignificant connections to traditional navigable waters, interstate waters, and territorial seas, to become jurisdictional under the CWA for the first time, without forcing EPA or the Army Corps to show that the remote waters have a significant impact on downstream traditional navigable waters, interstate waters, and territorial seas.
 See e.g. Congressional Research Service Report, Claudia Copeland, EPA and the Army Corps Proposed Rule to Define "Waters of the United States," dated November 21, 2014, available online at https://www.fas.org/sgp/crs/misc/R43455.pdf (last visited January 7, 2015) ("Proposed changes would increase the asserted scope of CWA jurisdiction, in part as a result of expressly declaring some types of waters categorically jurisdictional (such as all waters adjacent to a jurisdictional water), and also by application of definitions, which would give larger regulatory context than previously to some waters, such as tributaries.").
 Lawmakers from the House Agriculture; Oversight and Government Reform; and Science, Space and Technology committees asked EPA Administrator Gina McCarthy for documents regarding the agency's campaign of support for the "Waters of the U.S." rule. See e.g. May 26, 2015 Letter from members of the House of Representatives to Gina McCarthy regarding the Final Rule and EPA's efforts to gain public comments in support of the same, available online at http://www.eenews.net/assets/2015/05/27/document_gw_04.pdf (last visited May 28, 2015).
 See also, Specifically, the Clean Water Rule:
 Id. ("Specifically, the Clean Water Rule: . . . • 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.)