Draft EPA/Corps Guidance Seeks to Expand Federal Jurisdiction Over Wetlands, as Congress, Courts Question Agency Authority

New guidelines governing federal jurisdiction over wetlands and other “isolated waters” were sent by EPA and the Corps to OMB last month for review. They would, if adopted, significantly expand federal jurisdiction under the Clean Water Act (“CWA”)[1] over millions of acres of property, almost guaranteeing that the role of the agencies will ultimately be decided in the courts and Congress. The new draft comes as Congress considers legislation to cut off funding for EPA rulemaking[2] and as courts question how much deference to give to agency “guidance” documents, which are adopted without the benefit of full notice and comment rulemaking. (See related article below on the 4th Circuit Court of Appeals’ Precon decision). The new draft December 2010 “Clean Water Protection Guidance” (“2010 Guidance”) can be read here. The draft 2010 Guidance is intended to supersede earlier guidance the agencies issued in June 2007[3] and December 2008 (collectively “Existing Guidance”).

The Draft 2010 Guidance

The draft 2010 Guidance is presently before the White House Office of Management and Budget (OMB) for review and has not yet been officially released. Under Executive Order 12866, OMB has up to 90 days to review the Guidance and suggest changes. EPA and the Corps have said they will provide an opportunity for public comment,[4] although it will not be the full notice and comment rulemaking afforded agency regulations under the Administrative Procedures Act (“APA”).[5]

The proposed guidance is a significant departure from the Existing Guidance and relies more explicitly on the view taken by Justice Kennedy in the Supreme Court’s Rapanos decision.[6] The Guidance itself is not, however, a regulation and expressly does not substitute for the CWA or regulations adopted under the Act. As a result, the Guidance does not impose legally binding requirements on EPA, the Corps, or the regulated community.

The draft 2010 Guidance is 38 pages long and is divided into eight sections. Following is a summary of key points:

Under the Guidance, the following waters are subject to CWA jurisdiction:

• Traditional navigable waters;
• Interstate waters;
• Wetlands adjacent to either traditional navigable waters or interstate waters:
• Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning at least seasonal; and
• Wetlands that directly abut relatively permanent waters.

In addition, the following waters are subject to CWA jurisdiction if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate water:

• Tributaries to traditional navigable waters or interstate waters;
• Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters;
• Waters that fall under the “other waters” category of the regulations.

The following aquatic areas are generally not subject to CWA jurisdiction as waters of the United States:

• Wet areas that are not tributaries or open waters or do not meet the agencies’ regulatory definition of “wetlands”;
• Waters excluded from coverage under the CWA by existing regulations;
• Waters that lack a “significant nexus” where one is required for a water to be subject to CWA jurisdiction;
• Artificially irrigated areas that would revert to upland should irrigation cease;
• Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
• Artificial reflecting pools or swimming pools created by excavating and/or diking dry land;
• Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic purposes;
• Water-filled depressions created incidental to construction activity.

How the Draft 2010 Guidance Differs from Existing Guidance

The draft 2010 Guidance would significantly expand the scope of agency review under the CWA.[7] The most significant departure is the heightened emphasis placed on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction. The Rapanos decision advanced two different tests for determining federal jurisdiction under the CWA – Justice Scalia’s “continuous surface connection” test and Justice Kennedy’s “significant nexus” test – and the Existing Guidance said that the agencies would use both tests.[8] The 2010 Guidance refers to Justice Scalia’s test only as the “plurality standard” and allows staff to apply that standard as an option in the limited situations of evaluating jurisdiction over tributaries and wetlands adjacent to other waterbodies but does not encourage staff to use either test interchangeably. Most tellingly, the 2011 Guidance never refers to Justice Scalia by name although it refers to Justice Kennedy by name over fifty times.

A notable point of departure that 2010 Guidance makes from the Existing Guidance as a result of the new document’s emphasis on Justice Kennedy’s “significant nexus” test has to do with non-navigable tributaries of traditional navigable waters. The Existing Guidance states that the agencies will assert jurisdiction over such tributaries based on “continuous flow at seasonally (e.g., typically three months).” Citing problems with the varying time periods for what is “seasonal” across the country, the 2010 Guidance eliminates the “continuous” and “three month” elements of the equation and sets jurisdiction based on whether such waters “are relatively permanent, meaning at least seasonal.”[9] It is too early to determine the practical impact of these changes in terminology but given the overall tone of the 2010 Guidance it is reasonable to anticipate the EPA will apply these edits to more readily find jurisdiction.

The 2010 Guidance is also broader in scope than the Existing Guidance in that it addresses how to determine the jurisdictional status of interstate waters and other waters that were not addressed by the Existing Guidance.[10]

Additionally, the Draft 2010 Guidance addresses the scope of the CWA’s key term “waters of the United States” for all CWA provisions that use the term, including the Section 402 National Pollutant Discharge Elimination System (NPDES) permit program, the Section 311 oil spill program, the water quality standards and total maximum daily load programs under Section 303, and the Section 401 State water quality certification process.[11] The prior guidance was limited on its face to CWA Section 404 determinations.

One of the more contentious areas of determining CWA jurisdiction has involved what are described as “other waters” in the EPA’s and the Corps’ regulations. These waters include, among other things, “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows” and were specifically at issue in the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. (SWANCC),[12] in which the court held that Corps jurisdiction does not extend to isolated, abandoned sand and gravel pits with seasonal ponds. Recognizing that the Supreme Court has placed limitations on the geographic scope of what “other waters” may be determined to be jurisdictional the 2010 Guidance states that EPA and the Corps “intend to address, in greater detail in future notice-and-comment rulemaking, the full extent that Clean Water jurisdiction may reach” over such “other waters.”[13]

The Guidance does not address CWA jurisdictional exclusions for waste treatment systems or prior converted croplands, contentious issues that the agencies intend to address in future agency guidance documents.[14] Nor does it affect any of the exemptions from CWA Section 404 permitting provided by CWA Section 404(f), including those for normal agriculture, forestry, and ranching practices, nor the statutory and regulatory exemptions from NPDES permitting requirements for agricultural stormwater discharges and return flows from irrigated agriculture.[15]

Finally, the 2010 Guidance is in some respects less user-friendly than the Existing Guidance.[16] For example, the Existing Guidance provided guidelines for the regulated community to determine what features would not be subject to CWA jurisdiction. The 2010 Guidance eliminates such information from the “Summary of Key Points” making the reader work through the most of the 38-page document to glean EPA’s position that such features as swales, gullies, washes, and other small erosional features are generally not subject to CWA jurisdiction.

As the Draft 2010 Guidance is reviewed by OMB – and eventually the public – EPA has stated that it would make “‘case by case, fact-specific determinations of jurisdiction’ to determine whether such waters ‘alone or in combination with similarly situated other waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters or interstate waters.’”[17]

For more information about Marten Law’s water quality and wetlands practice please contact Jeff Kray.