In response to a Supreme Court ruling, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) issued joint guidance for their field offices to clarify circumstances where a Clean Water Act (CWA) Section 404 permit is required before conducting activities in wetlands, tributaries, and other waters. While the Corps and EPA say the guidance "will enable the agencies to make clear, consistent, and predictable jurisdictional determinations" and "ensure America’s wetlands and other water bodies are protected under the CWA," environmental organizations say it removes important headwater streams and wetlands from CWA protection.
According to the Corps and EPA, the guidance is consistent with the Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies’ jurisdiction under the CWA. The guidance, available online at www.usace.army.mil/cw/cecwo/reg, discusses the agencies’ protection of three classes of waters through the following actions:
- continuing to regulate "traditionally navigable waters," including all rivers and other waters that are large enough to be used by boats that transport commerce and any wetlands adjacent to such waters;
- continuing to regulate "non-navigable tributaries that are relatively permanent and wetlands that are physically connected to these tributaries;" and
- continuing to regulate based on case-by-case determinations for other tributaries and adjacent wetlands that have certain characteristics that significantly affect traditionally navigable waters.
The agencies say they generally will not assert jurisdiction over swales or erosional features (gullies and small washes characterized by low volume, infrequent, or short duration flow) or over ditches, including roadside ditches, excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.
The Corps and EPA say they will "assert CWA jurisdiction over traditional navigable waters and adjacent wetlands, non-navigable tributaries that are relatively permanent waters, and wetlands with a continuous surface connection with such tributaries. The agencies will also decide CWA jurisdiction over other non-navigable tributaries and over other wetlands adjacent to non-navigable tributaries based on a fact-specific analysis to determine whether they have a significant nexus with traditional navigable waters."
The National Wildlife Federation says that the Corps/EPA guidance "only further confuses the scope of the CWA and confounds the agencies’ ability to protect the nation’s waters." The conservation group calls on Congress to pass the recently introduced Clean Water Restoration Act of 2007 (HR 2421), which it says restores the "regulatory status quo" as it existed before the Supreme Court issued its decisions.