The Environmental Protection Agency and U.S. Army Corps of Engineers have issued a new guidance document that they hope will clear up some of the considerable confusion over the scope of federal wetlands jurisdiction in light of the U.S. Supreme Court 2006 Rapanos decision. The revised guidance, released on Dec. 2, replaces a July 2007 version, which critics claimed created more fuzziness than clarity in defining which wetlands are subject to Clean Water Act permitting requirements.

The high court’s ruling in Rapanos v. U.S. said that although federal jurisdiction does extend beyond strictly “navigable waters,” other areas in which jurisdiction may be unclear need to be evaluated on a case-by-case basis. Some industry groups said that the EPA-Corps 2007 guidance produced more ambiguity and led to excessive delays in permitting.

“This revised interagency guidance will enable the agencies to make clear, consistent and predictable jurisdictional determinations within the scope of the Clean Water Act,” says John Paul Woodley Jr., assistant secretary of the Army for civil works.

The new guidance clarifies that navigable waters are those that courts have determined to be navigable, have historically or are currently being used for commercial navigation or which could be used for commercial navigation in the future. The document also includes a more specific definition for the regulatory term “adjacent wetlands.”

But industry and environmental groups say the new guidance does not go far enough in clearing up how to determine jurisdiction. Nick Goldstein, American Road and Transportation Builders Association assistant general counsel, says the guidance is “moving a little further in the right direction,” but adds that EPA and the Corps still have “a long way to go” in eliminating ambiguity. ARTBA was pleased the agencies did specify that roadside ditches generally don’t fall under Clean Water Act jurisdiction, he says.

American Rivers, an environmental group, blasted the new guidance, saying it “continues to substantially limit the number of waters that will be protected by the Clean Water Act.”

In 2007, House Transportation and Infrastructure Committee Chairman James Oberstar (D-Minn.) introduced a legislative “fix” that he said would restore the original congressional intent in protecting waterways. Most construction groups don’t like the bill. They claim it would subject more wetlands to federal permits. Oberstar is expected to revive the measure in the new Congress. Karen Lapsevic, Associated General Contractors’ director of tax, fiscal affairs and infrastructure finance, says, “I think it’s one of the first bills he would re-introduce.”