On 6 June 2007, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency jointly issued new guidance for the determination of federal jurisdiction under section 404 of the Clean Water Act ("CWA" or the "Act") , which regulates most construction and development activities in wetlands and other waterways. The new guidance is an effort to respond to the U.S. Supreme Court's 2006 decision in Rapanos v. United States -- a case that addressed significant questions regarding how the agencies determine that a wetland, tributary or other water body is a "water of the United States," and thus subject to compliance with the Act. The Supreme Court issued five opinions in Rapanos, with no single opinion commanding a majority of the Court. The resulting uncertainty slowed the agencies' CWA enforcement programs, and lead to significant delays for permit applicants across the country.

Although the new guidance is intended to foster clarity and consistency in how section 404 will be applied and enforced, the determination of jurisdiction will continue to be a complex and controversial process in many cases. The guidance, which is actually comprised of several documents (including a new 60-page Instructional Manual), divides waters and wetlands into various classes for determining jurisdiction. There was no doubt that the agencies would continue to assert jurisdiction over traditionally navigable waters and the wetlands adjacent to those waters. The agencies will also continue to assert jurisdiction over "relatively permanent" non-navigable tributaries when those streams have perennial or at least seasonal continuous flow, as well as the wetlands that have a surface connection to those streams. The complexity and controversy will arise from the application of the "significant nexus" test, which will be used to determine when non-navigable tributaries with only occasional flows (i.e., ephemeral and some intermittent streams) as well as wetlands adjacent to those tributaries, are jurisdictional because they have a significant effect on downstream "traditionally navigable waters."

While the guidance calls for better documentation and access to jurisdictional decisions, it also contemplates additional opportunities for the EPA to review certain types of jurisdictional delineations made by the Corps, which will further lengthen the process for some applicants. For example, EPA's increased involvement may be evident in connection with the delineation of ephemeral desert washes in the west.

A link to the Corps website that contains the principal guidance memorandum and the supporting materials appears below. For more information, please contact Craig Douglas.

http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm