Corps Publishes Jurisdictional Waters Guidance

The U.S Army Corps of Engineers and the federal Environmental Protection Agency have issued joint guidance on implementation of the U.S. Supreme Court’s Rapanos decision regarding jurisdictional waters under Section 404 of the Federal Clean Water Act.  The June 2006 Raponos decision questioned the agencies historical application of “waters of the United States” for Section 404 permitting purposes.  The new guidance establishes a two-part test to determine jurisdiction.  The Corps' new guidelines, which include a two-part test, try to meet the demands of Kennedy and the other four justices.

 

The test confirms the Corps' jurisdiction over traditional navigable waterways and extends 404 jurisdiction to include certain non-navigable waterways, including wetlands and permanent streams, which are tributaries to larger waterways.   The second test extends 404 jurisdiction to non-navigable waterways and wetlands that have a "nexus" to navigable waterways even if they are considered intermittent or ephemeral streams or if they are separated from permanent tributaries because of uplands, dikes or other land features.

The agencies have prepared several documents for use by regulatory staff and permittees.  Copies of these guidance documents are available on the National Mining Association’s website: http://www.nma.org/tmp/060607_epa.asp

WVCA’s Environmental-Technical Committee is reviewing the guidance and having discussions with the Corps in anticipation of an industry training session on jonal waters determinations.