Environmental Protection

Agencies Revise Guidance Related to Rapanos

The U.S. Environmental Protection Agency and the Department of the Army are issuing revised guidance to ensure America's wetlands, streams, and other waters are better protected under the Clean Water Act (CWA), according to a Dec. 3 press release. The guidance clarifies the geographic scope of jurisdiction under the CWA.

"We are providing improved guidance today to ensure the information is in place to fully protect the nation's streams and wetlands under the Clean Water Act," said Benjamin H. Grumbles, EPA's assistant administrator for water. "The guidance builds upon our experiences and provides consistent direction to our staff and the public."

"We are committed to protecting America's aquatic resources as required by the Clean Water Act and in accordance with the Supreme Court decision," said John Paul Woodley Jr., assistant secretary of the Army (Civil Works). "This revised interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations within the scope of the Clean Water Act."

The revised guidance replaces previous policy issued in June 2007 and clarifies a June 2006 Supreme Court decision in <em>Rapanos v. United States </em>regarding the scope of the agencies' jurisdiction under the CWA. The guidance follows the agencies' evaluation of more than 18,000 jurisdictional determinations and review of more than 66,000 comments.

To view the 13-page guidance, go to http://www.epa.gov/owow/wetlands/pdf/CWA_Jurisdiction_Following_Rapanos120208.pdf.

In a Dec. 4 press release, the National Wildlife Federation criticized the revised guidance, saying it "is less protective and more confusing than the original June 2007 guidance it replaces."

According to the National Wildlife Federation, the revised guidance makes three primary changes from the original. In many cases, it requires waters to support or be capable of supporting commercial activity to be considered "traditionally navigable." Currently and under case law, mere navigation or susceptibility to navigation, including recreational navigation, suffices. Because an important test in the Rapanos decision measures the relationship between upstream waters and the nearest traditionally navigable water, it is crucial that as many waters be labeled traditionally navigable as the law allows.

By limiting the extent of such waters, the nature of the relationship between upstream waters and traditionally navigable waters will in many instances be more attenuated and thus less likely to support a finding that the upstream water is protected. The result will be fewer wetlands and streams being protected under the Clean Water Act.

The other changes attempt to clarify when a wetland is adjacent to another water body by providing a "reasonably close" standard and state that tributary flow, an element important in establishing protections under certain tests set forth in the guidance, can now be measured as "the flow regime that best characterizes the entire tributary" without providing what that means.

The National Wildlife Federation is urging Congress to pass the Clean Water Restoration Act to unambiguously reaffirm the historic scope of the Clean Water Act protections.

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