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.