EPA, U.S. Army Corps Release Jurisdictional Findings Database

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers made public a national database of approved jurisdictional determinations. The determinations apply to the Clean Water Act section 404 program, which regulates the discharge of dredged or fill material into waters of the United States. Measures to improve the section 404 program were announced concurrently with the Clean Water Rule. EPA and the corps now are complying with a nationwide stay on the Clean Water Rule imposed by the U.S. Court of Appeals for the Sixth Circuit in October 2015. However, the agencies still seek to improve transparency and to use the best science and technical data to make case-specific significant nexus determinations.

The database includes jurisdictional determinations approved since September under prior regulatory definitions of “waters of the United States.” During the stay, the agencies are applying prior guidance together with relevant case law, applicable policy, and the best available science to determine which waters are protected by the Clean Water Act.

In 2016, the agencies plan to further develop the database to include additional information on determination status as well as project details.

The release of the database comes as the Sixth Circuit, which heard oral arguments on Dec. 8,  determines whether the appellate court is the right venue to hear the challenges filed against the rule. Following the Sixth Circuit decision, the court will establish briefing schedules for debating the legality of the rule.

In a Nov. 16 memorandum of understanding, EPA and corps write that the agencies look forward to “vigorously defending the merits of the Clean Water Rule” and discuss Clean Water program administration in light of the stay. “We are confident that, when implemented, the new rule will make the process of identifying waters protected under the Clean Water Act easier to understand, more predictable, and more consistent with current science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”

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