In December 2008, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) issued joint guidance on the terms and procedures used to determine the extent of federal control over water and wetlands, building upon previous guidance issued in June 2007. Legal standards establishing the boundaries of jurisdictional waters, referred to as "waters of the United States," have been under public scrutiny since the U.S. Supreme Court's fractured 2006 decision, Rapanos v. United States, 547 U.S. 715 (2006), which set recognizable limits on federal control over wet areas. Regulators will look to the so-called "2008 Rapanos guidance" when deciding whether construction activities impacting wetlands, tributaries and other waters require federal authorization.Â
A construction project owner or operator must receive approval from the Corps via a Clean Water Act (CWA) Section 404 discharge permit before building (i.e., conducting dredge and fill activities) in federally-controlled "waters of the United States." The 2008 Rapanos guidance (hereinafter "2008 guidance") is intended to ensure that jurisdictional determinations and other relevant agency actions being conducted under the Section 404 program are consistent with the Rapanos decision. Â鶹ÊÓƵjoined with organizations representing the housing, mining, agriculture, and energy sectors to  on the earlier 2007 version of the interagency guidance. Following is a summary of key points contained in the 2008 guidance, along with specific references to how it addresses AGC's substantive and procedural comments.
CATEGORICAL JURISDICTION - The 2008 guidance provides, consistent with previous guidance, that the federal agencies will exercise categorical jurisdiction over the following classes of waters:
- Traditional navigable waters
- Wetlands adjacent to traditional navigable waters
- Relatively permanent non-navigable tributaries of traditionally navigable waters (i.e., where the tributaries typically flow year-round or have continuous flow at least seasonally (at least three months of the year))
- Wetlands that directly abut relatively permanent tributaries
- Non-navigable tributaries that are not relatively permanent
- Wetlands adjacent to non-navigable tributaries that are not relatively permanent
- Wetlands adjacent to, but that do not directly abut, a relatively permanent non-navigable tributary
- Swales or erosional features (e .g., gullies, small washes characterized by low volume, infrequent, or short duration flow)
- Ditches (including roadside ditches) excavated entirely, and draining only, in uplands where the ditches do not carry a relatively permanent flow of water