In This Issue

Clean Water Act Definition of “Waters of the United States”

EPA and the Corps of Engineers have jointly issued a legal memorandum on the EPA website, June 5, 2007, that interprets the June 19, 2006 Supreme Court decision in the consolidated cases Rapanos v. U.S. and Carabell v. U.S. (known as the “Rapanos” decision).

The guidance is being released to Corps of Engineers and EPA field offices to ensure nationwide predictability, reliability, and consistency in identifying wetlands, streams and rivers subject to the Clean Water Act (CWA). The EPA/Corps guidance reflects the agencies’ intent to provide maximum protection for the Nation’s aquatic resources under the CWA as interpreted by the Supreme Court in Rapanos. To ensure such decisions are made in a timely manner, the agencies have released concurrently with the guidance a Memorandum of Agreement laying out a process with specific short timeframes, when necessary, for reaching interagency agreements on jurisdictional calls. In addition, a series of questions and answers provides additional information.

The agencies will assert and decide jurisdiction over several water categories. The agencies generally will not assert jurisdiction over swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow) and ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water. A significant nexus analysis will be applied by the agencies to tributaries to determine its affect on navigable waters.

For additional information, or for a copy of the documents, contact Jessica Roger.