The Environmental Protection Agency and Corps of Engineers issued a memorandum June 5 giving guidance on wetlands regulation as a result of a 2006 Supreme Court decision that curbed their jurisdiction over wetlands under the Clean Water Act.
The court ruled in 2006 that EPA and the Corps exceeded their authority under the Clean Water Act in two cases involving Michigan land developers and the Clean Water Act Section 404 federal wetlands permitting program. (HNN 6/29/06) The high court ruled, 5-4, in the consolidated cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers.
The agencies issued the memorandum to give direction to EPA regions and Corps districts in implementing the Supreme Court's decision. EPA said the guidance is intended to ensure predictability, reliability, and consistency nationally in identifying wetlands, streams, and rivers subject to the Clean Water Act.
EPA said the guidance reflects the agencies' intent to provide maximum protection for the nation's aquatic resources under the act, as interpreted by the Supreme Court. To ensure jurisdictional decisions are made in a timely manner, the agencies also released a separate memorandum of agreement containing time frames for reaching interagency agreements.
EPA made the documents and additional information available via its Wetlands, Oceans, and Watersheds Internet page, www.epa.gov/owow.
Types of jurisdictional waters identified
The guidance identifies types of waters over which the agencies will assert jurisdiction categorically and on a case-by-case basis, based on the Supreme Court's opinions in the Michigan cases. EPA and the Corps said they would continually review the application of the guidance to ensure nationwide consistency, reliability, and predictability in administering the act.
Under the guidance, the agencies will continue to assert jurisdiction over traditional navigable waters, which are waters either used or susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide. The agencies also will continue to assert jurisdiction over wetlands adjacent to traditional navigable waters as defined in the agencies' regulations, which consider �adjacent� to mean bordering, contiguous, or neighboring.
The guidance further states the agencies will assert jurisdiction over non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally. Additionally, they will assert jurisdiction over those adjacent wetlands that have a continuous surface connection to such tributaries, that is, they are not separated by uplands, berms, dikes, or similar features.
Sen. James Inhofe, R-Okla., said the guidance should provide clarity to the regulated community and allow for an efficient process to determine federal jurisdiction. He added the agencies next should focus attention on updating their regulations to reflect the court's decision.
Environmental group American Rivers called for Congress to pass legislation that would address the issue. The group said the guidance does little to ensure protection for many of the nation's waters and would generate confusion by creating a multi-layered, laborious process to determine what waters are protected.
The Supreme Court heard the Michigan cases Feb. 21, 2006, the same day it heard arguments in a case involving hydropower project owner S.D. Warren and Section 401 of the Clean Water Act. The high court issued a ruling in that case in May 2006, upholding state Clean Water Act certification in hydropower licensing cases, saying certification is essential to preserve state authority to address a broad range of pollution. (HNN 5/16/06)
In another initiative involving the Clean Water Act, EPA is working on a rule previously proposed to clarify that hydropower plants do not require pollution permits under Section 402 of the act, if they merely transfer water between two bodies of water. (HNN 6/14/06) EPA expects the rule will be final in December.