U.S Fish and Wildlife Services
Uncertainty delayed Corps permit decisions.

Environmental Protection Agency and Corps of Engineers officials say newly issued regulatory guidance will provide more certainty about which wetlands are subject to federal authority and which are not. But the agencies’ June 5 document doesn’t carry the weight of a full-fledged rule and isn’t likely to be the last word on the persistently murky issue of wetlands regulation.

It’s an important topic for construction firms because dredging or building in a federally regulated wetland often requires a Corps permit under Section 404 of the Clean Water Act.

Environmental groups blasted the  guidance. “It doesn’t fix a thing and makes the status of protections even worse for streams and wetlands,” says  Jan Goldman-Carter, National Wildlife Federation wetlands counsel. “Greens” want Congress to act and are pushing for a House bill backed by committee chairmen James Oberstar (D-Minn.) and John Dingell (D-Mich.). Navis Bermudez, Sierra Club Washington representative for clean water issues, contends it would restore “the broad scope of the Clean Water Act.”

The EPA-Corps guidance is a belated follow-on to a June 2006 Supreme Court wetlands decision, Rapanos v. U.S. But the court was split, issuing five separate opinions, none winning a majority of the nine justices. With the uncertainty, many Corps permit decisions were delayed and its backlog of wetlands jurisdictional determinations at one point totaled 20,000. After a top official ordered the backlog to be cut, it has been  reduced to about 6,000.

Susan Asmus, National Association of Home Builders staff vice president for environmental policy, says of the new guidance, “We’re glad that they finally issued something as an alternative to what they were recently doing, which was nothing.”

The closest thing to a definition of federal wetlands jurisdiction in the court’s ruling was Associate Justice Anthony Kennedy’s statement that a “significant nexus” to navigable waters is required. The EPA-Corps memorandum directs “case-by-case evaluations” to determine whether that nexus exists for three types of waters: non-navigable tributaries that usually lack year-round or continuous seasonal flow; wetlands next to such tributaries; and wetlands adjacent to but not abutting “a relatively permanent non-navigable tributary.”

The agencies are taking comments on the guidance for six months. Three months after that, they “will either reissue, revise or suspend the guidance,” officials say.