Tuesday, June 05, 2007

EPA & Corps Issue Wetland Guidance Documents

Jun 5: Just days after Congressman Jim Oberstar (D-MN), Chair of the House Transportation and Infrastructure Committee, introduced legislation with over 150 cosponsors which he said is designed "to fix the Clean Water Act (CWA) after it was damaged by two U.S. Supreme Court rulings" [See WIMS 5/22/07]; U.S. EPA and the U.S. Army Corps of Engineers issued joint guidance for their field offices which they say will "ensure America's wetlands and other water bodies are protected under the Clean Water Act (CWA)." The agencies said the action reinforces the Bush Administration's commitment to protect and enhance the quality of our nation's wetlands and water bodies.

Benjamin Grumbles, EPA's assistant administrator for Water said, "The Bush Administration is committed to protecting wetlands and streams under the Clean Water Act and Supreme Court decisions. Today's action sends a clear signal we'll use our regulatory tools to meet the president's ambitious wetlands goals." John Paul Woodley Jr., assistant secretary of the Army (Civil Works) said, "We are committed to protecting America's aquatic resources under the Clean Water Act and in accordance with the recent Supreme Court decision. This interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations. The results, once posted on agency Web sites, will document how the scope of the Clean Water Act jurisdiction is being determined."

EPA and Corps staff will also use the guidance when taking enforcement actions under the CWA. The guidance clarifies those circumstances where a person may need to obtain a CWA Section 404 permit before conducting activities in wetlands, tributaries, and other waters. Individual tribal, state and local laws, regulations, or policies may further protect aquatic water resources. 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 [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities].

Specifically, the 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 net loss of wetlands, which is one of three key elements to the Bush Administration 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.

EPA said that during the first six months of implementing the guidance, the agencies are inviting public comments on case studies and experiences applying the guidance. The guidance notice of availability will be published in the Federal Register soon. The agencies said they will more broadly consider jurisdictional issues, including additional clarification and definition of key terminology, through rulemaking or other appropriate policy practice.

As part of the latest action, U.S. EPA has posted three new documents: (1) June 2007 Legal Memorandum (12 pp, discussing Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States.); (2) June 2007 Memorandum of Agreement (7 pp, regarding Coordination on Jurisdictional Determinations under Clean Water Act Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions.); (3) June 2007 Questions and Answers (7 pp).

Access a joint EPA/COE release (click here). Access the legal memorandum and Q&A document and background information on EPA's website (click here). Access the prepublication copy of FR notice (click here). Access additional documents and a powerpoint presentation on the COE website (click here). [*Water]