This article first appeared on my Green Building Law Update blog. The Green Building Law Update blog is intended for the entire environmental industrial complex (not just lawyers).

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The Environmental Protection Agency and the U.S. Department of the Army published a final rule on May 27, 2015, “clarifying” the scope of waters protected under the Clean Water Act. The rule is proposed to be effective 60 days after Federal Register publication.

EPA Administrator Gina McCarthy is quoted as saying the new rule will expand the scope of waters of the United States by “only about 3%” but that 3% represents millions of acres that are not today regulated. Some commentators have suggested that depending upon the EPA’s application of the rule, the true number may be tens of millions of new acres of privately owned land being removed from productive use.

For those uninitiated in the moving target clarifying what are “navigable waters of the United States,” defining where those waterways begin and end has since the enactment of the 1899 Rivers and Harbors Act been the subject of disputes between the federal government and land owners (predating the modern environmental movement).

The agencies proposed this rule in April, 2014, and solicited comment. This final rule was issued after over 1 million public comments on the proposal.

EPA detailed many of the changes in a series of industry-specific fact sheets. But the EPA commissioned report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence provides much of the technical basis for this rule.

The rule is intended to reduce the use of the 1987 Corps Wetland Delineation Manual which is used to make a case by case determination of whether or not a property is a jurisdictional water of the United States. Under this rule, all “tributaries” and all waters “adjacent” to traditional navigable waters (with adjacent now being broadly defined to include “neighboring” which term is defined as being located within a minimum of 100 feet and within the 100 year floodplain to a maximum of 1,500 feet of the ordinary high water mark), always will be jurisdictional waters.

Among the other more controversial features of this rule is that EPA and the Corps are extending jurisdiction over “case-specific significant” regional water features, like coastal bays in the Delmarva peninsula and the Carolinas, and prairie potholes in Texas and throughout the central U.S. Some have suggested this all sounds like a lot more than a 3% expansion and none of this is navigable (e.g., actually passable by a boat) under any reasonable interpretation.

The House of Representatives voted two weeks ago to block the rule and a similar bill was voted out a Senate committee days later. And Congress may not get the last say as litigation is in the offing and the Supreme Court has twice since 2001 issued decisions on waters of the United States rules (albeit it with two different results).

It is regularly suggested this is not a good way to make environmental policy. It has been over 40 years since the Cuyahoga River caught fire and spurred the 1972 passage of the Clean Water Act. The law was intended to target big, point source pollution like sewage leaks and oil spills, and the continuing efforts to use it to ‘clarify’ a definition of navigable water from the 1899 Rivers and Harbors Act does not serve the potable water issues that the nation faces today.

And despite being published as a final rule, this proposal is a long way from being final. That said, if we can assist you with a wetland issue do not hesitate to contact Stuart Kaplow.