e-Bulletin: EPA and U.S. Army Corps of Engineers Issue Guidance in Wake of Rapanos

In response to the Supreme Court’s recent decision in Rapanos v. United States (2006) 126 S. Ct. 2208, the Federal Environmental Protection Agency and the Army Corps of Engineers have issued guidance to ensure that the agencies’ actions are consistent with the Supreme Court’s holding. Titled Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, the guidance document delineates which waters are subject to the Clean Water Act, and specifically, which will require dredge and fill permits pursuant to Section 404 of the Act.

In sum, EPA and the Corps will assert Clean Water Act jurisdiction over:

1)   Bodies of water that are navigable in the traditional sense,
      and wetlands adjacent thereto;

2)   Non-navigable tributaries that are relatively permanent, and 
      wetlands with a continuous surface connection to such tributaries; 
      and

3)   Other non-navigable tributaries and adjacent wetlands based on a 
       fact-specific analysis to determine whether they have a significant 
       nexus with traditional navigable waters.

Pursuant to the recently issued guidance, EPA and the Corps will continue to assert jurisdiction over traditional navigable waters. These include all waters which are currently used, were used in the past, or may be used in the future in interstate or foreign commerce.  The agencies will also continue to assert jurisdiction over wetlands that are “adjacent” to such traditional navigable waters.

Additionally, EPA and the Corps will assert jurisdiction over all non-navigable tributaries of traditional navigable waters that are relatively permanent. A tributary is relatively permanent if it flows year-round or has a continuous flow for significant portions of the year. EPA and the Corps will also assert jurisdiction over wetlands that are adjacent to and have a continuous surface connection with a relatively permanent, non-navigable tributary.

Lastly, EPA and the Corps will continue to assert jurisdiction over any other wetland or body of water that has a significant nexus to downstream navigable waters. In determining whether a significant nexus exists, the agencies will consider whether the wetland or the water body, either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of other covered waters.

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For more details on the recently issued EPA guidance, or its implications, contact any attorney with BB&K's Environmental Law and Natural Resources Practice Group.

Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. ©2007 Best Best & Krieger LLP