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On December 2, 2008, the U.S. Environmental Protection Agency and the Department of the Army issued revised guidance. The guidance replaces previous guidance issued on June 5, 2007 following the U.S. Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States.
The new guidance was prepared in consideration of over 66,000 public comments and 18,000 jurisdictional determinations. Key points of the guidance are summarized below.
The Federal agencies will assert jurisdiction over the following waters:
1. Traditional navigable waters (traditional navigable waters include Rivers and Harbors Act Section 10 waters, waters that have been determined to be navigable-in-fact by the courts, are currently being used or have historically been used for commercial navigation, or for which evidence showing susceptibility to future commercial navigation is more than insubstantial or speculative)
2. Wetlands adjacent to traditional navigable waters. Adjacent means bordering, contiguous, or neighboring. A wetland is adjacent if it: a. Has an unbroken hydrologic connection to jurisdictional waters. This includes surface and shallow
sub-surface connections. The hydrologic connection may be intermittent.
b. Is separated from jurisdictional waters by man-made dikes, natural river berms, beach dunes, or similar features.
c. If it is in reasonably close proximity to a jurisdictional water. Such wetlands have an ecological
interconnection with jurisdictional waters.
d. Non-navigable tributaries of traditional navigable
waters that are relatively permanent where the
tributaries typically low year-round or have continuous
flow at least seasonally (e.g., typically three months).
e. Wetlands that directly abut such tributaries (d) 3. Significant Nexus.Waters that do not fall into the above catergories will be subject to a fact-specific analysis to determine if a significant nexus to navigable waters exists.
Applicaple water resources include:
a. Non-navigable tributaries that are not relatively
permanent. (relatively permanent waters do not
include ephemeral tributaries which flow only in
response to precipitation and intermittent streams
which do not typically flow year round or have
continuous flow at least seasonally; however,
clean Water Act jurisdiction over these waters will be
evaluated under the significant nexus standard
described below.)
b. Wetlands adjacent to non-navigable tributaries that are not relatively permanent.
c. Wetlands adjacent to but that do not directly abut a
relatively permanent non-navigable tributary
The Federal agencies generally will not assert jurisdiction over the following features:
1. Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow)
2. 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 apply the significant nexus standard as follows:
1. 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
2. Significant nexus includes consideration of hydrologic factors (e.g., volume, duration and frequency of flow; proximity to the traditional navigable water; size of the watershed; average rainfall; average winter snow pack; and channel dimensions).
3. Significant nexus includes consideration of ecologic factors (e.g., potential of tributaries to carry pollutants and flood waters to traditional navigable waters; provision of aquatic habitat that supports a traditional navigable water; potential of wetlands to trap and filter pollutants or store flood waters; and maintenance of water quality in traditional navigable waters).
Additional information may be found by clicking here.
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