New Proposed Guidance on the Jurisdictional Reach of the Clean Water Act

Trends: ABA Section of Environment, Energy, and Resources Newsletter

September 2011

By Jonathan Simon

In the wake of the U.S. Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), and Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos), perhaps no environmental issue has proven as vexing to judges, regulators, regulated entities, and others as the scope of jurisdictional water under the Clean Water Act (CWA), 33 U.S.C. § 1251, et seq.  To help clarify this issue for their field staff and others, on April 27, 2011, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) (together, the Agencies) jointly issued proposed guidance describing their current understandings of the jurisdictional reach of the CWA.  Draft Guidance on Identifying Waters Protected by the Clean Water Act, 76 Fed. Reg. 24,479 (Draft Guidance). 

If adopted in its current form, the Draft Guidance will expand the scope of waters subject to CWA jurisdiction beyond those waters over which jurisdiction has been asserted under existing guidance.  As proposed, the Draft Guidance will not impact previous jurisdictional determinations made by the Agencies.  However, the Agencies make clear that the Draft Guidance should be applied to all programs authorized under the CWA, not only the section 404 dredge and fill permit program.  As such, the Draft Guidance has potentially implications for any activity that may be regulated under the CWA.

Supreme Court interpretations

The CWA generally was designed to restore and maintain the quality and integrity of, and eliminate or minimize the discharge of pollutants into, the nation’s “navigable waters.”  Defined as “the waters of the United States,” the scope of waters covered by the CWA has been hotly debated, mostly in connection with when activities undertaken in wetlands are subject to regulation under the act.

The U.S. Supreme Court has addressed the scope of “waters of the United States” on three occasions.  First, in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (Bayview), the Court unanimously concluded that wetlands adjacent to traditional navigable waterways were “inseparably bound up with the ‘waters’ of the United States” and, therefore, subject to federal protection under the CWA.

Next, in SWANCC, the Court declined to extend its Bayview holding to non-adjacent, isolated waters based solely upon their seasonal use by migratory birds.  According to the Court, “[i]t was the significant nexus between the wetlands and ‘navigable waters’ that informed [its] reading of the CWA” in Bayview.  In SWANCC, by asserting CWA jurisdiction over isolated waters, the Corps was effectively reading the term “navigable” out of the CWA.

In Rapanos, the Court vacated and remanded two appellate court decisions that had upheld jurisdiction over wetlands connected to traditional navigable waters by a series of drainage ditches and non-navigable creeks, as well as wetlands separated from a drainage ditch by a berm.  The Justices produced a 4-1-4 decision, effectively establishing two separate jurisdictional tests.  Four Justices, in plurality opinion written by Justice Scalia, concluded that the CWA authorizes federal jurisdiction only over “relatively flowing” waters connected to traditional interstate navigable waters and wetlands that have a “continuous surface connection” with such waters such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”  In a concurring opinion, Justice Kennedy, took a different and potentially broader view, suggesting that the CWA applies to wetlands that have a “significant nexus” to waters that are commonly understood as navigable.  Since Rapanos, courts have either applied Justice Kennedy’s “significant nexus” standard or examined whether the waters would be within the CWA’s jurisdictional scope under the plurality standard.

Draft Guidance

The Draft Guidance proposes specific instructions to field staff regarding the findings necessary to identify waters that (1) are clearly subject to CWA jurisdiction as either navigable or interstate waters; (2) may be covered by the CWA under the “significant nexus” test; or (3) are generally not subject to CWA jurisdiction.  It also provides general guidance regarding the “significant nexus” standard, as well as instructional guidance to field staff on the documentation needed to support a jurisdictional determination.

The Draft Guidance identifies the following waters as categorically protected by the CWA:  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.  The latter two categories, the Draft Guidance explains, are within jurisdictional scope of the CWA under the Rapanos plurality standard. 

The Draft guidance states that the certain other waters or wetlands are protected by the CWA, but only if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate water.  The category of “conditionally protected” waters includes 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.  Under the Draft Guidance, waters generally will be considered to have a “significant nexus” if “they alone or in combination with other similarly situated waters in the same watershed have an effect on the chemical, physical, or biological integrity of traditional navigable waters or interstate waters that is more than ‘speculative or insubstantial.’”

Finally, the Draft Guidance defines certain aquatic areas as presumptively not protected by the CWA.  These non-jurisdictional waters include wet areas that are not tributaries or open waters and 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 reasons; water-filled depressions created incidental to construction activity; groundwater drained through subsurface drainage systems; and erosional features (gullies and rills), swales, and ditches that are not tributaries or wetlands.

Key changes from existing guidance

The Draft Guidance differs from the existing guidance (which it would replace) in several key respects.  First, the Draft Guidance arguably extends the reach of CWA jurisdiction beyond the scope defined in existing guidance.  For example, the Draft Guidance’s increased emphasis on the “significant nexus” test and the broad reach of its interpretation of this test appears to make it more likely that certain wetlands and waters will be found to be jurisdictional.  In addition, although existing regulations state that the Agencies will assert jurisdiction over interstate waters themselves, the Draft Guidance appears to go even further by providing that other waters or wetlands may be deemed jurisdictional by virtue of their relationship to such interstate waters, i.e., if a water or wetland has a significant nexus to such interstate waters, or a water contributes flow to an interstate water.  Moreover, the Draft Guidance appears to expand the definition of “traditional navigable waters” by allowing a trip taken solely for the purpose of demonstrating that a waterbody can be navigated to constitute sufficient evidence to support a determination that the water is susceptible to future commercial navigation and, therefore, is a traditional navigable water.  In addition to clarifying that tidal ditches are, by definition, water of the United States, the Draft Guidance suggests that many non-tidal ditches will also be considered jurisdictional when they:  have a bed, bank, and ordinary high water mark; connect to a traditional navigable or interstate water; and have certain other specified characteristics.

The Draft Guidance also takes a novel approach to addressing the controversial issue of jurisdiction over so-called “(a)(3) waters,” such as intrastate lakes, rivers, streams, mudflats, sandflats, wetlands, sloughs, wet meadows, and natural ponds.  33 C.F.R. § 328.3(a)(3).  Recognizing that SWANCC and Rapanos identified limitations on the scope of jurisdiction over such waters, the Draft Guidance states that the Agencies expect to further clarify this issue as part of a notice-and-comment rulemaking.  In the meantime, the Agencies will make case-by-case, fact-specific jurisdictional determinations with respect to (a)(3) waters that are in close physical proximity to traditional navigable waters, interstate waters, or their jurisdictional tributaries, by evaluating significant nexus in the same manner as for adjacent wetlands.  For other waters that are not physically proximate to jurisdictional waters—i.e., “isolated, intrastate, non-navigable waters and wetlands that would not meet the regulatory definition of ‘adjacent’ with respect to jurisdictional waters”—the Agencies passed on providing specific guidance and instead directed field staff to continue to refer jurisdictional determinations to headquarters for “formal project-specific approval.”

Finally, in contrast to the existing guidance, which explicitly addressed only which waters are subject to CWA section 404 jurisdiction, the Draft Guidance expressly addresses the scope of the CWA’s definition of “waters of the United States” for all CWA provisions that use the term.  This includes the section 402 National Pollutant Discharge Elimination System permit program, section 311 oil spill program, section 303 water quality standards and total maximum daily load programs, and section 401 state water quality certification process.

What’s next?

Although the Agencies solicited public comment on the Draft Guidance, the Guidance is not intended to be a binding regulation with the force of law, Instead, the Agencies announced that once the Guidance is finalized, they intend to initiate a formal rulemaking process to clarify further in regulations the extent of CWA jurisdiction.  This decision not to initiate a rulemaking proceeding in the first instance has proven controversial, with a bipartisan coalition of 170 House lawmakers calling for EPA to reconsider its approach.

In the interim, the proposed Guidance’s focus on case-by-case evaluations to determine whether a particular wetland or stream has a “significant nexus” with traditional navigable waters under the standard espoused by Justice Kennedy can be expected to continue to contribute to the significant cost and time associated with obtaining section 404 permits.  As a result, landowners and project developers will likely continue to call for the Agencies to quickly undertake a formal rulemaking with the goal of developing uniform, enforceable standards for establishing the scope of CWA jurisdiction. 

Reprinted with permission by Trends:  ABA Section of Environment, Energy, and Resources Newsletter.  This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.