The purpose of this message is to provide information and FHWA guidance on the recently issued Advanced Notice of Proposed Rulemaking (ANPRM) and Joint Policy Memorandum issued by the Corps of Engineers and EPA on jurisdictional waters affected by the the Supreme Court's 2001 decision on isolated wetlands, commonly referred to as the SWANCC decision.

On January 10, EPA and the Corps issued an ANPRM seeking input on how to deal with the SWANCC decision in the Section 404 regulatory program. The ruling stated that the Corps cannot legally assert jurisdiction over intrastate, non-navigable isolated waters when the only tie to interstate commerce is the use of the waters by migratory birds. Essentially, this decision removed intrastate, non-navigable isolated waters from 404 coverage unless there is some other reason that demonstrates use of such waters for traditionally navigable or interstate commerce purposes.

Within the same Notice, EPA and the Corps issued a joint policy memorandum which formally instructs their field offices to not assert jurisdiction over intrastate, non-navigable isolated waters when the only reason they have for asserting jurisdiction is the Migratory Bird Rule. And if those offices intend to assert jurisdiction on other factors, such as interstate commerce on such waters, they must first seek the approval of their headquarters unit.

The ANPRM and Joint Memorandum are attached. Also, they can be accessed on the web at: http://www.usace.army.mil/inet/functions/cw/hot_topics/affirm.pdf. We have prepared a summary discussion of these documents and guidance for FHWA field offices and State DOTs. (also attached)

For further information on specific issues related to these documents and Section 404 jurisdiction in general, please contact Paul Garrett, (720) 963-3071 (paul.garrett@fhwa.dot.gov), Hannah Visser, (202) 366-2066 (hannah.visser@fhwa.dot.gov), or Fred Bank (202) 366-5004 (fred.bank@fhwa.dot.gov)