EPA, Army Corps Wetlands Guidance Re Supreme Court

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued joint guidance for their field offices to ensure America's wetlands andother water bodies are protected under the Clean Water Act (CWA). The guidance clarifies those circumstances wherea person may need to obtain a CWA Section 404 permit before conducting activities in wetlands, tributaries, and other waters.

The guidance is consistent with the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies' jurisdiction under the CWA. Specifically, this guidance discusses the agencies' protection of three classes of waters through the following actions:

1) Continuing to regulate "traditionally navigable waters," including all rivers and other waters that are large enough to be used by boats that transport commerce and any wetlands adjacent to such waters;
2) Continuing to regulate "non-navigable tributaries that are relatively permanent and wetlands that are physically connected to these tributaries"; and
3) Continuing to regulate based on case-by-case determinations for other tributaries and adjacent wetlands that have certain characteristics that significantly affect traditionally navigable waters.

The guidance supports a strong regulatory program that ensures no netloss of wetlands, which is one of three key elements to the BushAdministration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement and protection of three million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes. More information.