On May 27, 2015, the Environmental Protection Agency and the U.S. Army Corps of Engineers released a new rule redefining federal jurisdiction under the Clean Water Act. The rule expands federal jurisdiction by making all tributaries to traditional navigable waters jurisdictional, regardless of the quantity or timing of flow. The new rule also creates a new class of "adjacent waters" which is more expansive than the "adjacent wetlands" that are currently regulated.
Ditches, including transportation ditches for roads and railroads, can be considered jurisdictional if they satisfy the definition of a tributary and do not fall under one of the rule's exemptions. The distinction between ditches and tributaries is likely to lead to conflict and litigation. For example, ephemeral tributaries are considered jurisdictional under the rule, but ephemeral "ditches" and "erosional features" are not—and the rule does not define the terms "ditches" or "erosional features."
The new rule will go into effect 60 days after being published in the Federal Register, and has significant implications for projects that alter or develop land. Some projects that were previously not subject to regulation may now require a permit under the Clean Water Act.
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