U.S. EPA and Army Corps of Engineers Release Long-Awaited Guidance on Geographic Extent of Clean Water Act Jurisdiction After Rapanos v. United States
Nearly a year after the U.S. Supreme Court’s decision in the combined cases of Rapanos v. U.S. and Carabell v. U.S. (collectively known as “Rapanos”), the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) have issued guidance that attempts to clarify the geographic scope of Clean Water Act (“CWA”) jurisdiction. The stated intent of the guidance, released on June 5, 2007, is to “ensure nationwide predictability, reliability, and consistency in identifying wetlands, streams and rivers subject to the Clean Water Act.” While the guidance identifies some categories of waters that will always be subject to CWA jurisdiction (e.g., traditional navigable waters, wetlands adjacent to traditional navigable waters, etc.), the jurisdictional call for numerous other waters and wetlands is left to a fact-specific, case-by-case analysis that seeks to identify whether those waters have a “significant nexus” with traditional navigable waters. Whether this guidance provides any of the intended clarity will only become clear over the next several months as Corps districts begin to apply it to individual cases.
In the Rapanos decision, a divided Supreme Court provided no majority opinion. Instead, a plurality of four justices, led by Justice Scalia, was joined in the judgment reversing the lower court by Justice Kennedy, who wrote a separate concurring opinion. The plurality applied a very narrow interpretation to CWA jurisdiction, extending the agencies’ regulatory authority only to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to” such relatively permanent waters. Justice Kennedy agreed with the plurality that the lower courts had interpreted CWA jurisdiction too broadly, but disagreed with the plurality’s pinched interpretation. Instead, Justice Kennedy looked to whether the waters in question bear a “significant nexus” to traditional navigable waters, i.e., whether they, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” This latter, fact-intensive and case-by-case approach, lends itself to considerably greater uncertainty, as well as a much broader jurisdictional reach.
Following the Rapanos decision, both the regulators and the regulated community have been gripped with uncertainty. Corps district offices have been hesitant to make jurisdictional calls, and businesses and landowners have clamored for more guidance on what is still considered jurisdictional or not. The June 5, 2007 guidance was intended to address this uncertainty. It does so by asserting CWA jurisdiction over waters that would meet either the plurality test (relatively permanent; continuous surface connection) or the Kennedy test (significant nexus). This approach reflects the position taken by some, but not all, lower courts to have interpreted Rapanos, as well as the position taken by the U.S. government in post-Rapanos litigation.
The newly issued guidance, which is in the form of a 12-page legal memorandum, a 7-page Memorandum of Agreement between the Corps and EPA, and 7-page list of key questions and answers, generally breaks the jurisdictional analysis into two major categories.
Categorical Jurisdiction. The first, and presumably more manageable, category includes those waters over which CWA jurisdiction will be asserted in every case. These are those waters over which the agencies believe a majority of the Court would find jurisdiction. They include:
- traditional navigable waters (e.g., the Ohio River);
- wetlands adjacent to traditional navigable waters (i.e., those wetlands that are bordering, contiguous to, or neighboring, but not necessarily with a continuous surface connection to, traditional navigable waters);
- non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g., typically three months); and
- wetlands that directly abut such tributaries (i.e., that have a continuous surface connection with the tributary in question, as distinguished from the broader notion of “adjacent” wetlands used above).
Waters within these categories will not require any “significant nexus” finding, and will be treated as jurisdictional in all cases.
Significant Nexus Jurisdiction. The second category is likely to create more uncertainty and disagreement, as the agencies and the regulated community engage in the case-by-case, fact-specific analysis required to determine whether the water in question has a “significant nexus” to a traditional navigable water (i.e., the Kennedy test). They 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 that do no directly abut a relatively permanent non-navigable tributary.
Under the “significant nexus” analysis, the agencies will assess the “flow characteristics and functions of the tributary itself, together with the functions performed by any wetlands adjacent to that tributary,” to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters. The agencies spend nearly five pages in their legal memorandum describing how this fact-intensive and relatively subjective analysis will occur. The bottom line is that jurisdictional determinations for a large number of waters that are not considered traditionally navigable will continue to be made on an ad hoc, case-specific basis by individual Corps districts, with the opportunity for inconsistency and uncertainty that will slow the regulatory process and delay project proponents’ plans.
Exceptions. The agencies notably list a few areas over which jurisdiction will not be asserted, although they represent a fairly narrow set of waters and will likely not resolve many of the more difficult jurisdictional questions. They 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 agencies even carve out an exception from the exceptions, noting that “certain ephemeral waters in the arid west” may serve as a transitional area between the upland environment and traditional navigable waters, and therefore may have a significant nexus to such waters.
Public Comment. While this guidance is not a formal rulemaking, the agencies have invited public comments during the first six months of its implementation. Comments are to address “case studies and experiences applying the guidance,” and the agencies will “broadly consider jurisdictional issues, including additional clarification and definition of key terminology, through rulemaking or other appropriate policy practice.”
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This guidance is unlikely to resolve the considerable uncertainty surrounding CWA jurisdiction, or prevent continuing litigation to test the agencies’ interpretations in the federal courts. Careful attention will be necessary in the coming months to follow the course of this debate and to properly discern the extent of federal jurisdiction under the Clean Water Act. Because the Clean Water Act authorizes significant civil and criminal penalties for undertaking unpermitted activities in jurisdictional areas, an understanding of the current scope of CWA jurisdiction is essential for any landowner planning land-disturbing activities. For more information on this subject, please contact Tim Hagerty at (502) 568-0268 (email@example.com).