EPA and the U.S. Army Corps of Engineers Issue Joint Guidance on Wetlands Jurisdiction

On June 5th, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) issued joint wetlands guidance to their field offices to "ensure that jurisdictional determinations, administrative enforcement actions, and other relevant agency actions are consistent" with the Supreme Court’s decision earlier this year in the consolidated cases of Rapanos v. United States and Carabell v. United States. Specifically, the joint guidance intends to identify those waters over which the agencies will assert jurisdiction under § 404 of the Clean Water Act (CWA) either categorically or on a case-by-case basis.

EPA has overall responsibility for developing sound and scientifically defensible environmental standards, criteria, advisories, guidelines, and limitations under the CWA, and has a critical role in reviewing § 404 jurisdictional determinations. The Corps has authority to issue and enforce permits for dredging and filling wetlands. The agencies are jointly issuing these changes to § 404 policy guidance and are inviting public comment on case studies and experiences in applying the joint guidance during the first six months of its implementation. The comment period will commence upon publication of the notice of availability in the Federal Register.

Background

In Rapanos,126 S. Ct. 2208 (2006), the Court vacated the judgments of the U.S. Court of Appeals for the Sixth Circuit, which had upheld federal 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 Court remanded the cases to the lower court for further proceedings. However, the justices issued five separate opinions – one plurality opinion, two concurring opinions, and two dissenting opinions – with no single opinion commanding a majority of the Court. Four justices, in the plurality opinion written by Justice Scalia, concluded that the CWA authorized federal jurisdiction only over "relatively permanent bodies of water...connected to traditional interstate navigable waters," as well as wetlands that have a continuous surface connection with the waters such that it is "difficult to determine where the ‘water’ ends and the ‘wetland’ begins." Justice Kennedy, however, concurring in the judgment only, also voted to overturn the lower court, but described a separate case-by-case approach to jurisdictional determinations that could sustain federal jurisdiction in lieu of a more specific (and limited) Corps regulation.

The Supreme Court did not determine whether federal jurisdiction extends to wetlands separated from tributaries by man-made barriers or to wetlands next to smaller tributaries that flow into larger navigable streams, lakes, or rivers. After more than a year of controversy and conflicting interpretations of Rapanos, the agencies have issued joint guidance (not a rulemaking) that is effective immediately. Whether this approach settles the controversy is an open question, since the agencies also promised to open a 180-day public comment period on how the joint guidance is being applied and what improvements would streamline the effectiveness of the document. At the end of the comment period, the agencies could decide to revise, reissue, or revoke the joint guidance.

Agency Guidance

The agencies developed the joint guidance to address what waters are subject to CWA § 404 jurisdiction, and to specifically identify those waters over which the agencies will assert jurisdiction categorically or on a case-by-case basis, using either of the tests articulated by Justices Scalia and Kennedy in their respective opinions in Rapanos. According to the agencies, the new guidance "faithfully interprets the Supreme Court’s ruling" by requiring both agencies to look at the features

and functions of streams and wetlands, including their ecology and hydrology, to determine whether federal protection is needed.

The agencies indicate that they will categorically assert jurisdiction over the following wetlands:

• Traditional navigable waters; and
• Wetlands "adjacent" to traditional navigable waters. Under EPA and Corps regulations, and as used in the joint guidance, "adjacent" means "bordering, contiguous, or neighboring."

The agencies indicate that they will rely on Justice Scalia’s plurality opinion to assert jurisdiction over the following types of waters, without the legal obligation to make a "significant nexus" determination:

• 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
• Adjacent wetlands that have a continuous surface connection to non-navigable tributaries to traditional navigable waters.

The agencies will rely on Justice Kennedy’s concurring opinion to assert jurisdiction over the following types of waters only upon a fact-specific finding that they 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 it by uplands, a berm, dike, or similar feature).

"Significant Nexus" Analysis

The joint guidance describes how the agencies intend to perform the "significant nexus" analysis of whether waters are jurisdictional. Pursuant to the joint guidance, the first step will be to determine whether the tributary has any adjacent wetlands. Where a tributary has no adjacent wetlands, the agencies will consider the flow characteristics and functions of only the tributary itself in determining whether such tributary has a significant effect on the chemical, physical, and biological integrity of downstream traditional navigable waters. If the tributary has adjacent wetlands, the evaluation will need to recognize the ecological relationship between tributaries and their adjacent wetlands, and their closely linked role in protecting the chemical, physical, and biological integrity of downstream traditional navigable waters. The agencies, therefore, indicate that they will consider the flow and functions of the tributary, together with the functions performed by the adjacent wetland, in evaluating whether a significant nexus is present. When it is determined that a tributary and its adjacent wetlands collectively have a significant nexus with traditional navigable waters, the tributary and all of its adjacent wetlands will be considered jurisdictional waters.

When evaluating whether there is a significant nexus, the agencies will review principally the volume, duration, and frequency of the flow of water in the tributary and the proximity of the tributary to a traditional navigable water. In additional to hydrologic information, the agencies note that they may reasonably consider certain physical characteristics to characterize water flow, such as the presence and characteristics of a reliable ordinary high water mark with a channel defined by bed and banks, shelving, wracking, water staining, sediment sorting, and scour.

The agencies assert that they also will consider the functions performed by the tributary and any adjacent wetlands, including the capacity to carry or reduce the amount of pollutants or flood waters to traditional navigable waters, the capacity to transfer nutrients and organic carbon, habitat services, and maintenance of downstream water quality. After assessing the flow characteristics and functions of the tributary and its adjacent wetlands, the agencies will evaluate whether these factors are more likely to have an effect that is speculative, or insubstantial, on the chemical, physical, and biological integrity of a traditional navigable water.

According to the agencies, examples of waters that generally may not be considered jurisdictional include: swales, gullies, roadside and upland ditches that do not have a continuous flow of water and only collect and convey incidental rainfall, and dry washes.

Finally, the agencies note that nothing in this guidance should be interpreted as providing authority to assert jurisdiction over waters deemed non-jurisdictional in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).

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