June 01, 2016 Feature

A Wetland by Any Other Name: Where Does Federal Jurisdiction Apply?

Michelle R. McKown

Normally when one thinks about what constitutes a “wetland,” a swamp, bog, or marsh probably comes to mind. Visions of cattails, lily pads, and bullfrogs waxing eloquently while eyeing their next catch abound in the scene. However, under a new rule finalized by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), the traditional notion of what the public thinks of as a wetland could be dramatically changed. This is because EPA and Corps jointly finalized a new rule defining what areas of water are subject to federal jurisdiction and control. This rule was promulgated to address many years of confusion regarding the application of several U.S. Supreme Court cases interpreting certain provisions of the Clean Water Act (CWA), namely what is covered as “waters of the United States” for purposes of jurisdiction. The rule was made final on May 27, 2015, and published in the Federal Register on June 29, 2015. 80 Fed. Reg. 37054-37127. The final rule went into effect 60 days from the date of its publication in the Federal Register. So the question for practitioners to consider now is when is a wetland not just a wetland but also a “water of the United States” to trigger legal requirements?

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