Beveridge & Diamond

EPA, Army Corps Issue New Wetlands Regulatory Guidance

Beveridge & Diamond, P.C., June 7, 2007

On June 5, 2007, EPA and the U.S. Army Corps of Engineers (collectively “the agencies”) issued joint guidance interpreting the bounds of federal Clean Water Act (“CWA”) jurisdiction following last year’s splintered Supreme Court decision in Rapanos v. United States.  In Rapanos, the Court considered whether CWA jurisdiction extends to:  (1) wetlands adjacent to non-navigable waters of the United States; and (2) wetlands close to but isolated from non-navigable waters of the United States.  The Court split 4-1-4 on these issues, creating two vastly different tests for CWA jurisdiction and leaving the lower federal courts, government regulators, and stakeholders awash in confusion.  The agencies intend for their new guidance to clear up this confusion and lead to clear, consistent, and predictable jurisdictional determinations under the CWA.  We respectfully think it will not.

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