U.S. Environmental Protection Agency and U.S. Army Corps of Engineers Announce New Guidance on Jurisdictional Determinations Under the Clean Water Act

June 7, 2007
by JONATHAN RINDE
MGKF Special Alert

On June 5, 2007, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Corps") issued the long-awaited guidance documents on performing jurisdictional determinations for waters and wetlands in the wake of the U.S. Supreme Court's decisions in Rapanos v. U.S. and Carabell v. U.S., which opinions were issued in July 2006.

According to the federal agencies, the key points of the newly-released guidance documents are as follows:

The federal 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 (e.g., typically three months); and
  • wetlands that directly abut such tributaries.

The federal agencies generally will not assert jurisdiction over the following features:

  • swales or erosional features (e.g., gullies and small washes characterized by low volume, infrequent, or short duration flow); and
  • ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.

The federal 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 non-navigable tributary.

The federal agencies will apply the "significant nexus" standard as follows:

  • A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters.
  • Significant nexus includes consideration of hydrologic and ecologic factors.

These guidance documents do not affect the jurisdiction state agencies have over waters and wetlands pursuant to state law. A complete set of guidance documents issued by the federal agencies can be obtained at http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html.

If you would like additional information concerning the above-referenced guidance, please contact our partner Jonathan E. Rinde (jrinde@mgkflaw.com) at 484-430-2325 or any other attorney at Manko, Gold, Katcher & Fox LLP.