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Policy Statement 378 - National Wetlands Regulatory Policy

 

Approved by the Energy, Environment, and Water Policy Committee on August 8, 2016 
Approved by the Public Policy Committee on August 10, 2016
Adopted by the Board of Direction on September 27, 2016

Policy

The American Society of Civil Engineers (ASCE) supports the effort of the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency's (EPA) to clarify jurisdiction over wetlands under the Clean Water Act.  ASCE supports a final rule that:

  • Maintains federal jurisdiction over all interstate and navigable waters, their tributaries, and all adjacent wetlands under the pre-2001 U. S. Army Corps of Engineers' (USACE) regulatory program under the Commerce Clause in the U.S. Constitution using an unambiguous test for significant nexus to navigable-in-fact waters;
  • Clarifies state jurisdiction under section 404 of the Clean Water Act over isolated, non-navigable intrastate waters and their adjacent wetlands, including vernal pools, playas, and prairie potholes, considering recent Supreme Court decisions and other jurisdiction based on environmental and wildlife considerations under regulations promulgated by the Department of the Interior or the Environmental Protection Agency (EPA); and 
  • Amends the Clean Water Act to clarify federal jurisdiction over intermittent and ephemeral streams and their adjacent wetlands under section 404 to the USACE, in coordination with the EPA.

Issue

On August 28, 2015 the Clean Water Rule: Definition of "Waters of the United States" became effective. The rule was created after decades of court confusion, primarily stemming from the Rapanos decision, where the controlling opinion of Justice Kennedy stated that "through regulations or adjudication, the USACE may choose to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters."  In response to this and other court decisions, the USACE and EPA issued a proposed rule on April 21, 2014. Following a six-month public comment period and eight months of rewriting the rule incorporating public feedback, a final rule was issued which addressed most concerns raised by stakeholders and simultaneously improved transparency, strengthened coordination between agencies, increased public participation and promotes use of the best available science and technical data for making case-specific significant nexus determinationvs.

Rationale

Clear jurisdictions for national wetlands regulations must emerge from the national legislative and policy-making bodies. A clear jurisdiction for national wetlands policy and criteria is needed to ensure that wetlands' issues are properly addressed in a timely and predictable manner during the project development process.

ASCE Policy Statement 378
First Approved in 1991

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