EPA and Corps of Engineers Issues Joint Agency Guidance Regarding Jurisdictional Matters

On Tuesday, June 5, 2007 the EPA and US Army Corps of Engineers issued a joint agency guide relating to Clean Water Act jurisdiction over “waters of the United States.”  The measure was in response to the US Supreme Court’s rulings in Rapanos v. United States and Carabell v. United States.  In summary, the agencies will now assert jurisdiction over the following waters: (1) traditional navigable waters, (2) wetlands adjacent to traditional navigable waters, (3) non-navigable tributaries of traditional navigable waters that typically flow year round or have at least three months of seasonal flow, (4) wetlands that directly abut such tributaries.

The agencies may also claim jurisdiction over the flowing waters if they determine it has a significant nexus with a traditional navigable water: (1) non-navigable tributaries that are not relatively permanent, (2) wetlands adjacent to such waters, (3) wetlands that are adjacent to but do not abut such waters.

The agencies will not, generally, assert jurisdiction over the following features: (1) swales or erosion features (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.

Clean Waters Act Jursidictional Guide

Key Questions for Guidance Release

EPA/COE Coordinantion Procedures

 

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