In 2006, the Supreme Court again addressed the jurisdictional scope of Section 404, specifically the term “waters of the U.S.” in Rapanos v U.S. The decision provided two new analytical standards for determining whether water bodies that are not traditional navigable waters (TNWs), including adjacent wetlands. As a consequence of this decision, the EPA and Corps developed guidance which requires the application of the new standards as well as a greater level of documentation to support an agency jurisdictional determination (JD) for a particular water body. In addition, the agencies now require that all determinations for non-navigable, isolated waters be elevated for Corps and EPA HQ review prior to the District making a final decision on the JD. The objective of this research is to develop a scope of work for transportation design and environmental staff (agency and/or consultant) detailing the information and level of detail required to support jurisdictional determinations by the Corps under the CWA Section 404. The intent would be to streamline the JD process, reduce delay, and control costs for both the transportation agencies and the Corps.
Based on an initial review, it appeared that the DOTs and the Corps staffs have adapted to the post-Rapanos system and that the significant delays that occurred in the early days of the Rapanos decision are no longer present. Therefore, the research team recommended that this project be closed with no further action. The advisory panel for Task 52 agreed with the research team's finding. The technical memorandum documenting Tasks 1 and 2 are posted at https://www.trb.org/notesdocs/25-25(52)_TechMemo.pdf