EPA revises wetlands guidance

WASHINGTON, D.C.—The U.S. Environmental Protection Agency (EPA) and the Department of the Army are issuing revised guidance to protect wetlands, streams, and other waters under the Clean Water Act (CWA). The guidance clarifies the geographic scope of jurisdiction under the CWA. According to Benjamin H. Grumbles, EPA’s assistant administrator for water, the guidance provides consistent direction to its staff and the public.

"We are committed to protecting America’s aquatic resources as required by the Clean Water Act and in accordance with the Supreme Court decision," said John Paul Woodley Jr., assistant secretary of the Army (Civil Works). "This revised interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations within the scope of the Clean Water Act."

The revised guidance replaces previous policy issued in June 2007 and clarifies a June 2006 Supreme Court decision in Rapanos v. United States regarding the scope of the agencies’ jurisdiction under the CWA. The guidance follows the agencies’ evaluation of more than 18,000 jurisdictional determinations and review of more than 66,000 comments.

According to a memo issued by EPA and the U.S. Army Corps of Engineers, The agencies will assert jurisdiction over the following waters :

• traditional navigable waters;
• wetlands adjacent to traditional navigable waters;
• 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 (typically three months); and
• wetlands that directly abut such tributaries.

The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water:

• non-navigable tributaries that are not relatively permanent
• wetlands adjacent to non-navigable tributaries that are not relatively permanent; and
• wetlands adjacent to, but that do not directly abut, a relatively permanent nonnavigable tributary.

The agencies said they generally will not assert jurisdiction over swales or erosional features (gullies, small washes characterized by low volume, infrequent, or short-duration flow) or ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water

More information on the guidance is available online at www.epa.gov/owow/wetlands/guidance/CWAwaters.html.