Draft Guidance On Corps of Engineers Wetlands Rules

The US Corps of Engineers and US EPA have issued “Draft Guidance on Identifying Waters Protected by the Clean Water Act”. The Guidance interprets two key Supreme Court decisions on the applicability of the Clean Water Act to wetlands. The Draft Guidance addresses both wetlands and waterbodies and is limited to whether the federal Clean Water Act applies; it does not determine what state laws or regulations might apply. Following the 60-day public comment period, EPA and the Corps intend to finalize the Guidance and then initiate formal rulemaking.

Under the Draft Guidance, federal jurisdiction would apply to wetlands that are 1) adjacent to either traditional navigable waters or interstate waters; 2) directly abut relatively permanent waters; or 3) are adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters if there is a “significant nexus”

The federal jurisdiction would apply to waterbodies that are 1) traditional navigable waterbodies; 3) interstate waterbodies; or 3) non-navigable tributaries to traditional navigable waters that are relatively permanent tributaries to traditional navigable waters or interstate waters if there is a “significant nexus”

The applicability to the category of “other waters”, including some that are physically proximate to other jurisdictional waters and some that are not, will be based on fact specific circumstances

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