Difficulties of Post-Rapanos Wetland Guidance Prompt Extension of Comment Period
[Originally published as a Wendel Rosen Client Alert, November 20, 2007.]
In a tacit admission that the proposed new Wetland Guidance ("Guidance") is difficult to understand, much less apply, the administration extended the public comment on the Guidance an additional 45 days. U.S. EPA and the Army Corps of Engineers will accept comments until January 21, 2008 on Guidance they released in June to "help" regulators comply with the Rapanos decision when evaluating wetland jurisdiction for issuance of dredge-and-fill permits.
The issue is whether the Guidance is consistent with the landmark Rapanos v. United States and Carabell v. United States cases decided last year. In brief summary, a plurality of the court decided federal wetland regulation is limited primarily to navigable waterways and adjacent wetlands and does not extend to man-made ditches and other seasonally or intermittently wet areas that do not have "a significant nexus" to a navigable waterway. The proposed Guidance says traditionally navigable waters and adjacent wetlands continue to be regulated, as would non-navigable waters and wetlands that are "relatively permanent." Other wetlands, the Guidance says, would be regulated on a case-by-case basis. Some areas, previously contended by some to be wetlands, would not be regulated at all.
Since issuing the Guidance, the agencies examined case studies and solicited comments based on real-world applications of the proposed Guidance. Apparently based on that information, the agencies admitted that their proposal was "complex," and that any final Guidance was months away.