Tuesday, June 26, 2007
Has Clean Water Act Jurisdiction Become More Clear?
EPA and Army Corps of Engineers Publish Joint Guidance
The Environmental Protection Agency (EPA) and the Army Corps of
Engineers released long-awaited guidance addressing jurisdictional
determinations under the Clean Water Act (CWA). 72 Fed. Reg. 31824 (June 8, 2007); guidance available here. There is general agreement that a 2006
Supreme Court case limited the reach of the CWA, but the Court did not
articulate a clear standard for determining whether or not a wetland or body of
water is covered by the CWA. In the guidance,
EPA and the Corps explain how they will approach jurisdictional determinations
in light of the Supreme Court’s recent decision.
In
2006, the Supreme Court decided two consolidated cases involving the Corps of
Engineers’ authority to require dredge and fill permits under CWA § 404 for discharge
into wetlands having only indirect connections to navigable waters. Rapanos v. United States and Carabell
v. United States (126 S.Ct. 2208 (2006)) (hereinafter “Rapanos”). The Corps of Engineers had asserted
jurisdiction over the wetlands as “adjacent wetlands” under 33 C.F.R. §
328.3(a)(7), the definition of “waters of the United States,” and the property
owners objected.
The
Supreme Court issued five separate opinions:
one plurality opinion, two concurring opinions, and two dissenting opinions. The plurality opinion stated that “adjacent
wetlands” of “waters of the United States” must have a continuous surface
connection to a “water of the United States” and that the “water of the United
States” must be a relatively permanent body of water connected to traditional
interstate navigable waters. In a
concurring opinion, Justice Kennedy set out a different test: that in order to fall within CWA
jurisdiction, an “adjacent wetland” must have a “significant nexus” to
traditionally navigable waters. Because
the Court did not agree on a single standard, Rapanos has made it more
confusing to ascertain whether a wetland or non-navigable waterway is under the
jurisdiction of the CWA.
In
an effort to resolve some of the confusion, the Corps and EPA have developed
and issued guidance to EPA regions and Corps districts charged with
implementing Rapanos. U.S. EPA
and U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following the
U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v.
United States, June 8, 2007 (hereinafter CWA Jurisdiction Guidance). The guidance observes that “[w]here there is
no majority opinion in a Supreme Court case, controlling legal principles may
be derived from those principles espoused by five or more justices.” CWA Jurisdiction Guidance at 2. Under this approach, “regulatory jurisdiction
under the CWA exists over a water body if either the plurality’s or Justice
Kennedy’s standard is satisfied.” Id.
The
agencies will continue to assert jurisdiction over traditional “navigable
waters”: waters that are currently used,
or have been used in the past, or may be susceptible to use in interstate or
foreign commerce, including all waters that are subject to the ebb and flow of
the tide. CWA Jurisdiction Guidance at
4-5. Also, wetlands adjacent to
traditional navigable waters will be subject to EPA and Corps
jurisdiction. Id. at 5. Regulations of EPA and the Corps define
“adjacent” as “bordering, contiguous, or neighboring.” According to the guidance, “Rapanos
does not affect CWA jurisdiction over wetlands that are adjacent to traditional
navigable waters because at least five justices agreed that such wetlands are
‘waters of the United States.’” Id.
A
second category of waters, non-navigable tributaries of navigable waters, is
subject to CWA jurisdiction when the tributary is “relatively permanent.” Id.
Tributaries that ordinarily flow year-round or that have at least a
continuous seasonal flow would be considered “relatively permanent.” Id. at 6. Tributaries that flow only in connection with
precipitation events and intermittent streams that do not flow year-round or
have continuous seasonal flow would not be considered “relatively permanent.” Id.
Adjacent wetlands having a continuous surface connection with a
relatively permanent, non-navigable tributary are subject to CWA
jurisdiction. Id.
Finally,
the agencies will perform case by case analyses to determine whether the
following types of waters have a “significant nexus” with a traditional
navigable water:
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 abutting a relatively permanent tributary (e.g.,
separated from the tributary by uplands or a berm, dike, or other similar feature).
Id. at 7. The “significant nexus” analysis will
consider hydrologic and ecologic factors to determine whether the wetland or
non-navigable tributary significantly affects the chemical, physical, and
biological integrity of the traditional navigable water. Id.
The guidance states that swales or erosional features such as gullies
generally would not be considered “waters of the United States.” Id. at 11. Also, ditches that are located in uplands and
that do not carry a relatively permanent flow of water generally are not
“waters of the United States.” Id. However, even if a gully or ditch does not
have a significant nexus with a navigable water, the tributary may be considered
a point source discharging pollutants into the navigable water, and therefore
may be under CWA jurisdiction. Id.
The
agencies are taking public comments on implementation of the guidance until
December 5, 2007. Within nine months
after the release of the guidance, the agencies will reissue, revise, or
suspend the guidance after considering public comments on the guidance and
reports of experience in implementing the guidance. Comments may be submitted online at www.regulations.gov,
to Docket No. EPA-HQ-OW-2007-0282, or via electronic mail to OW-Docket@epa.gov,
with the docket number in the “subject” line.
For more information, please contact Monica Derbes Gibson at mdgibson@liskow.com, or Robert E. Holden at
reholden@liskow.com or go to www.liskow.com.
