New Guidance Narrows Federal Regulation of Some Wetlands, Streams and Ditches


On June 5, 2007, the U.S. EPA and United States Army Corps of Engineers (Corps) issued their long-awaited guidance on the scope of regulation under the Clean Water Act, based on the Supreme Court's June 2006 decisions in Rapanos v. United States and Carabell v. United States.

The Clean Water Act, under which the Corps and EPA derive their jurisdiction to regulate wetlands and other

aquatic features, applies only to “navigable waters,” defined as “waters of the United States.” 33 U.S.C. §§

1344(a), 1362(7). The Agencies’ regulations, in turn, explain the scope of “waters of the United States” as “[a]ll

other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats,

wetlands , sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or

destruction of which could affect interstate or foreign commerce.” See, e.g.,33 C.F.R. § 328.3(a).

The new guidance clarifies what features fall under this rubric, distinguishing between certain features long-regulated by the Agencies and those features that, under Rapanos and Carabell, may require some additional analysis by the Agencies to determine if they fall under the Act.

The new guidance reaffirms the Agencies’ jurisdiction over four established categories of aquatic features: (1)

traditionally navigable rivers and streams; (2) non-navigable tributaries that are “relatively permanent” (in that they flow year-round or have a continuous seasonal flow); (3) wetlands adjacent to (i.e., bordering, contiguous

to or neighboring) traditionally navigable waterways; and (4) wetlands with physical continuous surface connections (i.e., not separated by an upland, berm, dike or similar feature) to relatively permanent nonnavigable tributaries. The Agencies will assert jurisdiction over such features without any further analysis.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP | Attorney Advertising

Written by:


Morrison & Foerster LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.