Federal Wetlands Guidance Debuts; Corps Sued Over Ditch Permitting

August 16, 2007
Client Alert Newsletter August 2007

On June 5, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Corps") issued long-awaited guidance documents on performing jurisdictional determinations for waters and wetlands in the wake of the U.S. Supreme Court's July 2006 decision in Rapanos v. U.S. and Carabell v. U.S. In short, the guidance states that the federal agencies will assert jurisdiction over traditionally navigable waters and relatively permanent non-navigable tributaries of traditionally navigable waters, and over wetlands adjacent to both of these waters. Further, the agencies generally will not assert jurisdiction over swales, erosional features, and ditches, including roadside ditches, the latter of which are excavated wholly in and drain only uplands and do not carry a relatively permanent flow of water. In accordance with the Court's decision, the Corps also will perform fact-specific "significant nexus" analyses to determine whether other waters are within its permitting jurisdiction.

In related news, on June 13, the National Association of Homebuilders ("NAHB") announced that it was suing the Corps for allegedly exceeding its authority by requiring permits for filling of certain ditches pursuant to Nationwide Permit 46, one of six new Corps Nationwide Permits finalized in a March 9 regulation. The NAHB claims that certain ditches are not within the Corps' Clean Water Act jurisdiction.