Revised Rapanos Guidance

On June 5, 2007, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) issued specific guidance, regarding the Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States. Both the EPA and the U.S. Army Corps of Engineers accepted public comments on the Rapanos guidance until January 20, 2008. Both agencies received 66,047 public comments on the Rapanos Guidance (65,765 form letters, 282 non-form letters), from States, environmental and conservation organizations, regulated entities, industry associations, and the general public.

EPA and the Corps have reviewed the comments and have revised the guidance in consideration of those comments and consistent with our experience implementing the guidance over the past 18 months. The comments generally addressed four substantive issues and two procedural ones. The substantive areas were: the interpretation of the term “significant nexus;” the treatment of tributaries; the definition of “relatively permanent waters;” and the scope of “traditional navigable waters.” The procedural areas were: the delay in processing jurisdictional determinations and the coordination between the two agencies on jurisdictional determinations. The agencies also received comments from some on other important issues. One of these, the definition of adjacency, which has been an important implementation issue for the agencies, was also discussed in great detail. To review the complete revised guidance click on the documents below.

CWA Jurisdiction Following Rapanos v US and Carabell v US 12-02-08
Rapanos Response to Comments FINAL DEC 02 08
Rapanos Guidance Q_’s and A_’s