A 2006 Supreme Court decision was anticipated to provide a clear test for when a wetland is subject to federal jurisdiction, however, the court split three ways, with no point of view supported by a majority of the justices. The prevailing view since 2006 has been that a wetland is subject to federal jurisdiction if it satisfies either of two tests: 1) the wetland must be immediately adjacent to a navigable body of water that has a relatively permanent flow; or 2) there is a “significant nexus” between the wetland and a body of water that was, is, or could be made navigable. The current Guidance is intended to be “consistent with Supreme Court decisions and existing agency regulations”.
Under the Draft Guidance, federal jurisdiction would apply to wetlands that:
- are adjacent to either traditional navigable waters or interstate waters;
- directly abut relatively permanent waters; or
- are adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters if there is a “significant nexus”
The federal jurisdiction would apply to waterbodies that are:
- traditional navigable waterbodies;
- interstate waterbodies; or
- non-navigable tributaries to traditional navigable waters that are relatively permanent (contain water at least seasonally) tributaries to traditional navigable waters or interstate waters if there is a “significant nexus”
The applicability to the category of “other waters”, including some that are physically proximate to other jurisdictional waters and some that are not, will be based on fact specific circumstances
Following the 60-day public comment period, EPA and the Corps intend to finalize the Guidance and then initiate formal rulemaking.
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