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Two federal statutes mandate the Corps jurisdiction over navigable waterways and adjacent wetlands. These are Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. Section 10 of the Rivers and Harbors Act of 1899 to all navigable waters of the United States and Section 404 of the Clean Water Act applies to all waters including wetlands that have sufficient nexus to interstate commerce. The diagram below illustrates the lateral limit where Section 10 and Section 404 apply.
The Corps has two approaches to complete a jurisdictional determination (JD) for the purpose of establishing jurisdiction pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) and Section 404 of the Clean Water Act (33 USC 1344). The two types of JDs are Preliminary and Approved JDs.
On April 21, 2020, the Environmental Protection Agency (EPA) and the Department of the Army’s Navigable Waters Protection Rule: Definition of “Waters of the United States” was published in the Federal Register. This final rule establishes the scope of federal regulatory authority under the Clean Water Act. The Navigable Waters Protection Rule (NWPR) includes four simple categories of jurisdictional waters and provides specific exclusions for many water features that traditionally have not been regulated. The final rule will become effective on June 22, 2020. The published version is 93 pages, and the citation is: 85 FR 22250. The Federal Register notice is available at https://www.federalregister.gov/documents/2020/04/21/2020-02500/the-navigable-waters-protection-rule-definition-of-waters-of-the-united-states . Additional information about the Rule can be found on the EPA’s website at https://www.epa.gov/nwpr .
Corps Headquarters and US EPA have posted the following announcements, tools, training and implementation materials regarding publication of the Rule:
01 - Definition of Waters of the United States
02 - Typical Year
03 - Tributaries and Ditches
04 - Lakes, Impoundments and Ponds; Adjacent Wetlands
05 - Exclusions
06 - AJD Form
On December 1, 2008, the U.S. Supreme Court denied the government's petition for a writ of certiorari for United States v. McWane. Inc., et al. By default, Corps and USEPA now recognize the 11th Circuit decision that the Kennedy standard is the sole method of determining CWA jurisdiction in that circuit. The State of Georgia is located within the 11th Circuit, and consequently, the Savannah District now requires completion of a significant nexus test for all approved JDs. A significant a nexus test is an analysis of the flow characteristics and functions of the water and the functions performed by all wetlands adjacent to the water to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters and includes consideration of hydrologic and ecologic factors.
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