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EPA/Corps Release Draft Guidance in Bid to Expand Federal Jurisdiction Over Wetlands

May 4, 2011

EPA and the U.S. Army Corps of Engineers (the Corps) have published proposed guidance which describes their view of the federal government’s authority to regulate wetlands. The April 2011 “Clean Water Protection Guidance” (proposed 2011 Guidance) can be read here. The 2011 Guidance provides the agencies’ views on the reach of the federal Clean Water Act (CWA or Act)[1] in light the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)[2] and Rapanos v. United States (Rapanos).[3] It is intended to supersede a 2003 “Joint Memorandum”[4] providing clarifying guidance on SWANCC, and a 2008 Joint Guidance memo issued after the U.S. Supreme Court’s Decision in Rapanos (collectively “Existing Guidance”). The 2011 Guidance will, if adopted, significantly expand federal CWA jurisdiction over millions of acres of property, and very likely be challenged. The public comment period ends on July 1, 2011.

The agencies’ decision to issue the 2011 Guidance instead of immediately initiating rulemaking has been criticized by members of Congress and representatives from both industry and environmental interest groups.[5] The decision to rely on a policy statement rather than a rule also runs counter to several recent federal appellate decisions giving limited deference to agency “guidance” documents. For example, in Precon Development Corp., Inc. v. Army Corps of Engineers (Precon) the Fourth Circuit held that the Corps’ interpretation of the U. S. Supreme Court’s Rapanos decision in a guidance document is entitled to less deference by the courts than agency rules adopted after notice-and-comment.[7] For more on Precon and the deference – or lack of it – given to agency guidance see J. Kray, Fourth Circuit Backs Developer in Dispute Over Clean Water Act Jurisdiction, Marten Law Environmental News (March 11, 2011). This issue will almost certainly become even more important as EPA finalizes the proposed 2011 Guidance.

Three Supreme Court Decisions on CWA Jurisdiction

The U.S. Supreme Court has addressed the scope of CWA jurisdiction in three cases, two of which are specifically addressed by the proposed 2011 Guidance. In SWANCC, the Court addressed the question of CWA jurisdiction over isolated ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds. In Rapanos, the Court addressed CWA protections for wetlands adjacent to tributaries, and issued five opinions with no single opinion commanding a majority of the Court. Neither SWANCC nor the opinions in Rapanos invalidated any of the regulatory provisions defining “waters of the United States.” The Court also addressed the question of CWA jurisdiction in an earlier case, Riverside Bayview Homes.[8] While not specifically addressed in the 2011 Guidance, the Riverside Bayview case informed the Court’s decisions in the latter two cases. In the 2011 Guidance, the agencies state that they “believe it is advisable to replace existing guidance documents interpreting SWANCC and Rapanos in order to implement the CWA in a manner that is consistent with those opinions, reflects the best available science, and recognizes recent field implementation experience.”[9]

Overview of the Proposed 2011 Guidance

Following is a summary of key points in the 2011 Guidance.

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 they contain water at least seasonally; 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; and
  • Waters that fall under the “other waters” category of the regulations. The proposed 2011 Guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.

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 protected by the CWA;
  • 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;
  • Groundwater drained through subsurface drainage systems; and
  • Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands.

The 2011 Guidance is divided into eight sections: two sections addressing the fundamental classes of waters subject to Clean Water Act jurisdiction: traditional navigable waters (Section 1) and interstate waters (Section 2); a section providing general guidance relating to the “significant nexus” standard described by Justice Kennedy in the Rapanos decision (Section 3); three sections providing guidance on determining whether various types of waters are subject to CWA jurisdiction, including tributaries (Section 4), adjacent wetlands (Section 5), and other waters (Section 6); a section providing examples of waters that are generally not waters of the United States under the CWA (Section 7); and a final section providing guidance on the documentation necessary to support decisions concerning whether waters are protected by the CWA (Section 8). The Guidance provides additional scientific and legal information concerning these topics in the appendix at the end.

How the Proposed 2011 Guidance Differs from Existing Guidance

The proposed 2011 Guidance relies more explicitly on the view taken by Justice Kennedy in the Supreme Court’s Rapanos decision[10] and would significantly expand the scope of federal agency review under the CWA.[11] The most significant departure is the heightened emphasis placed on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction.[12]

The Rapanos decision advanced two different standards for determining federal jurisdiction under the CWA – Justice Scalia’s “continuous surface connection” standard and Justice Kennedy’s “significant nexus” standard – and the Existing Guidance said that the agencies would use both standards.[13] The 2010 Guidance refers to Justice Scalia’s test as the “plurality standard” and continues to allow staff to apply either the plurality standard or the Kennedy standard as an option when evaluating whether to assert jurisdiction over tributaries or adjacent wetlands.[14] By comparison, the draft 2010 Guidance would only have allowed staff to use the “plurality standard” in the limited situation of evaluating jurisdiction over tributaries and wetlands adjacent to other waterbodies but did not encourage staff to use either standard interchangeably. In this respect, the 2011 Guidance is facially less different from the Existing Guidance than the draft 2010 Guidance would have been.

A notable point of departure that 2011 Guidance makes from the Existing Guidance has to do with determining CWA jurisdiction over non-navigable tributaries of traditional navigable waters. The Existing Guidance states that under the plurality standard, 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 2011 Guidance eliminates the “continuous” and “three month” elements of the equation and sets jurisdiction based on a determination of the “length and timing of seasonal flows in the ecoregion in question.”[15] It is too early to determine the practical impact of these changes in terminology but given the overall tone of the 2011 Guidance it is reasonable to anticipate the EPA will apply these edits to more readily find jurisdiction.

The 2011 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.[16]

Additionally, the 2011 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.[17] The Existing 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 SWANCC,[18] 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 proposed 2011 Guidance states that “the agencies expect to proceed with notice and comment rulemaking to further clarify the regulatory definition of the term ‘waters of the United States.’”[19] Until such rules are enacted, the agencies are directing their staff to continue to refer jurisdictional determinations for such waters to their respective headquarters and to “obtain formal project-specific approval before asserting or denying jurisdiction.”[20]

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.[21] 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.[22]

Comment Period for the Proposed 2011 Guidance

Comments on the proposed 2011 Guidance must be received by July 1, 2011.[23] The agencies are asking for public comment on all aspects of the proposed guidance, including interpretations and scientific underpinnings. As the proposed 2011 Guidance is reviewed by 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.’”[24] Until the final 2011 Guidance is issued, both the 2003 and 2008 Existing Guidance remain in effect. It is not the agencies’ intention to re-open previously issued jurisdictional determinations based on issuing the new proposed Guidance.[25]

The Guidance is not a regulation, and is likely to be challenged on that basis. See District Court Says EPA Cannot Shortcut Rulemaking Process by Issuing Interpretative Guidance, Marten Law Environmental News (February 3, 2011). It does not impose legally binding requirements on EPA, the Corps, or the regulated community. The agencies have said that they will eventually propose revisions of existing regulations, but they have not indicated when they will do so.[26]

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

[1] 33 U.S.C. § 1251 et seq.

[2] 531 U.S. 159 (2001).

[3] 547 U.S. 715 (2006).

[4] 68 FR 1991, 1995.

[5] P. Quinlan, Wetlands: Guidance won’t spark ‘massive increase’ in federal jurisdiction – EPA chief (Inside EPA, April 27, 2011) (subscription required).

[6] 633 F.3d 278 (4th Cir. 2011).

[7] Id. at 290 fn. 10 (4th Cir. 2011). The Precon decision continues a trend seen mostly recently in National Mining Ass’n v. EPA, Slip Opinion, ___ F.3d ___, Dkt. No. 10-1220 (RBW) (D.C. Cir. 2011). See also, District Court Says EPA Cannot Shortcut Rulemaking Process by Issuing Interpretative Guidance, Marten Law Environmental News (February 3, 2011).

[8] 474 U.S. 121 (1985).

[9] See EPA’s Federal Register Notice at p. 6.

[10] 547 U.S. 715 (2006).

[11] See Can We Comment Yet? EPA and Corps Issue Proposed New Rapanos Guidance, American College of Environmental Lawyers (May 2, 2011).

[12] Proposed 2011 Guidance at pp. 7-18.

[13] See J. Kray, “Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.” Marten Law Environmental News (June 6, 2007).

[14] Proposed 2011 Guidance at pp. 11 and 15.

[15] Id. at pp. 12-13.

[16] Id. at p. 7.

[17] Id. at p. 3.

[18] 531 U.S. 159 (2001).

[19] Proposed 2011 Guidance at p. 20.

[20] Id.

[21] Id. at p. 7. For more on CWA issues regarding prior converted croplands, see J. Kray, Farm Bureau Suit Seeks to Reinstate Exclusion From Wetland Regulation for Former Farmlands, Marten Law Environmental News (April 28, 2010).

[22] Id.

[23] 60 days after publication in the Federal Register.

[24] A. Sayid, EPA Drafts Guidance, Plans to Clarify Jurisdiction Over Water Bodies, Wetlands (Environment Reporter, February 25, 2011) (subscription required).

[25] Proposed 2011 Guidance at p. 2.

[26] Proposed 2011 Guidance at p. 1.

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