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Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps

June 6, 2007

On June 5, 2007, the U.S. Army of Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) issued a joint guidance memorandum (guidance) to assist personnel at those agencies in determining when to exercise jurisdiction under the federal Clean Water Act (“CWA”) over certain wetlands and related waterbodies addressed by the United States Supreme Court in 2006 in Rapanos v. United States.[1] The new guidance does little to resolve the uncertainty that Rapanos created. Specifically, it fails to resolve CWA jurisdiction over wetlands adjacent to non-navigable waters, intermittent and ephemeral streams, and other non-territorial water bodies that may account for a large portion of the 53% of water bodies the EPA estimated were at risk in Rapanos.[2]

The Guidance

As this newsletter previously reported, the Rapanos decision advanced two different tests for determining whether wetlands are “waters of the United States” and, therefore, subject to federal jurisdiction under the CWA.[3] Those tests are Justice Scalia’s “continuous surface connection” test and Justice Kennedy’s “significant nexus” test. Determining how to apply the two tests has divided lower courts.[4]

EPA recently stated that the agencies would use both tests.[5] Under their new guidance, the Corps and EPA have essentially determined to divide waters into three categories: jurisdictional, possibly jurisdictional, and not jurisdictional. Waters over which the agencies will assert jurisdiction include:

  • Traditional navigable waters (i.e., waters used in interstate commerce);
  • Wetlands adjacent to traditional navigable waters;
  • Non-navigable tributaries of traditional navigable waters that are relatively permanent (i.e. flowing year-round or continuous seasonally); and
  • Wetlands that directly abut such tributaries

Waters over which the agencies may assert jurisdiction include:

  • Non-navigable tributaries that are not relatively permanent;
  • Wetlands adjacent to non-navigable tributaries that are not relatively permanent; and
  • Wetlands adjacent to but not directly abuttting a relatively permanent non-navigable tributary.

For this second category, the agencies will determine whether to assert jurisdiction by applying a “significant nexus” standard that does not require a continuous surface connection to wetlands adjacent to navigable waters. Instead, the significant nexus standard will require the agencies to:

  • assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigational waters; and
  • consider hydrologic and ecologic factors.

Waters which the agencies will not assert jurisdiction include:

  • Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow); and
  • Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.

The guidance focuses only on those Corps and EPA regulations that were at issue in Rapanos, namely 33 C.F.R. § 328.3(a)(1), (a)(5), and (a)(7) and 40 C.F.R. § 230.3(s)(1), (s)(5), and (s)(7). Thus, the new guidance does not affect other programs, such as the CWA section 402 National Pollution Discharge Elimination System (NPDES) program, that use “waters of the United States” to define federal jurisdiction.[6] The EPA’s webpage with further background information on the scope of "Waters of the United States" protected under the CWA is here.

Joint Memorandum of Understanding

The Corps and the EPA also issued a Joint Memorandum of Understanding setting forth procedures designed to improve interagency cooperation and communication about CWA section 404 Jurisdictional Determinations (JDs). The EPA will now participate in Corps’ jurisdictional determinations and will have fifteen (15) days to comment on all of the Corps’ draft decisions under CWA section 404 to assert or decline CWA jurisdiction over waters.

Comment Period

The Corps and the EPA have stated that they “intend to more broadly consider CWA jurisdictional issues, including clarification and definition of key terminology, through rulemaking or other appropriate policy process.”[7] Toward that end, the agencies are providing a six-month comment period on the guidance. The comment period is intended to allow their staff to immediately rely on the guidance while simultaneously allowing the public to “provide comments, case studies, and experiences with the use of this guidance.”[8] Within nine months, the agencies will reissue, revise, or suspend the guidance.[9]

Congressional Action

Meanwhile, federal CWA jurisdiction is again at issue in Congress. On May 22, 2007, Rep, James Oberstar (D-Minn.) introduced H.R. 2421, a bill that seeks to amend the CWA to “to clarify the jurisdiction of the United States over waters of the United States.” Sen. Russ Feingold (D-Wis.) has said that he will propose a companion bill in the Senate.[10] If enacted, the amendments would broaden the Corps’ and the EPA’s CWA jurisdiction and mean that federal permits would be required for actions impacting wetlands, intermittent and ephemeral streams, prairie potholes, and other non-territorial water bodies not covered under the guidance. For more information on Congressional action on this issue, see Democrats Introduce Controversial Legislation to Broaden EPA’s Clean Water Act Authority.

Conclusion

The new guidance memorandum should encourage agency personnel to act on backlogged permit applications and provide answers to some questions about where the agencies stand on the scope of their CWA jurisdiction. However, by leaving the hard jurisdictional questions to a case-by-case analysis, the guidance may do little to reduce jurisdictional disputes, and may in fact encourage litigation.

For more information about Marten Law Group’s water quality practice and the post-Rapanos regulatory environment, please contact Jeff Kray.

[1] 128 S.Ct. 2208 (2006). For further analysis of the Rapanos decision, see Long Anticipated Supreme Court Wetlands Decision Leaves Much to Be Decided. For analysis of the Supreme Court’s recent decisions to deny petitions for certiorari in two cases that presented opportunities to clarify Rapanos, see Supreme Court Passes on Post-Rapanos Opportunities to Clarify “Navigable Waters” Jurisdiction.

[2] See Corps and EPA Responses to the Rapanos Decision, Key Questions for Guidance Release (Key Questions Memo).

[3] See Long Anticipated Supreme Court Wetlands Decision Leaves Much to Be Decided.

[4] See Federal Courts Split on Application of Supreme Court’s Rapanos Decision.

[5] Wetlands: EPA, Army Corps issue long-sought regulatory guidance, Greenwire (June 5, 2007) (subscription required).

[6] Key Questions Memo.

[7] Guidance at p. 3.

[8] Key Questions Memo.

[9] Id.

[10] Wetlands: EPA, Army Corps issue long-sought regulatory guidance, Greenwire (June 5, 2007) (subscription required).

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