EPA and Corps Propose Guidance on Reach of Clean Water Act

On April 27, 2011, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (“the Agencies”) jointly proposed Draft Guidance on Identifying Waters Protected by the Clean Water Act[1] (Draft Guidance) to assist the Agencies’ field staffs in making case-by-case determinations of what waters are subject to regulation under the Clean Water Act (CWA). This Draft Guidance represents the latest effort in the several decades of debate about the scope of jurisdictional waters under the CWA. When finalized, the Guidance will supersede earlier guidance issued in 2003 and 2008, and it will expand the scope of waters subject to CWA jurisdiction beyond those waters considered jurisdictional under the existing guidance.  No changes are proposed for current exclusions from CWA jurisdiction. 

Although the Agencies are soliciting public comment on the Draft Guidance, the Guidance is not intended to be a binding regulation with the force of law.  Instead, once the Guidance is finalized, the Agencies intend to promulgate a rule, presumably with the goal of securing deference on their interpretation of what waters are jurisdictional under the Act.  The Guidance, therefore, effectively will serve as an advance notice of proposed rulemaking. The 60-day public comment period on the Draft Guidance closes on July 1, 2011.

BACKGROUND

The CWA applies to “navigable waters,” which are defined as “the waters of the United States.”  Since Congress passed the CWA in 1972, the scope of “the waters of the United States” has been hotly debated, mostly in connection with when jurisdictional activities occurring in our nation’s wetlands can be regulated. 

The U.S. Supreme Court addressed the question of what waters are subject to CWA jurisdiction most recently in two important decisions: 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).  In SWANCC, the Court held that the CWA’s requirements for Section 404 discharge permits into “navigable waters” did not extend to discharges into isolated waters whose sole connection to interstate commerce was that migratory birds visited the site. 

In Rapanos, the Court issued several opinions, effectively providing two separate tests for determining when waters are jurisdictional.  Under Justice Scalia’s opinion for a 4-member plurality, only wetlands adjacent to a channel that “contains a . . . relatively permanent body of water connected to traditional interstate navigable waters” and has a “continuous surface connection” to that water are jurisdictional.  Under Justice Kennedy’s concurring opinion, in contrast, the CWA applies to wetlands that have a “significant nexus” to waters that are commonly understood as navigable.  The 4-member dissent by Justice Stevens asserted that the longstanding jurisdictional test for wetlands—whether they are “adjacent to navigable waters”—should not be displaced by the more fact-specific “significant nexus” test because “wetlands adjacent to tributaries of navigable waters generally have a significant nexus with the traditionally navigable waters downstream.” Since Rapanos, courts generally either apply Justice Kennedy’s “significant nexus” test or they examine whether the waters would be jurisdictional under either of the two tests.

The Draft Guidance follows this approach, indicating that, under the prior 2003 and 2008 guidance, waters meeting either Justice Scalia’s ”continuous surface connection” test or Justice Kennedy’s “significant nexus” test were considered jurisdictional.   As the Draft Guidance states, the prior guidance, however, “did not make full use of the authority provided by the CWA” as construed in SWANCC and Rapanos.  Specifically, the CWA “must be interpreted consistently for all CWA provisions, including not only the section 404 dredge and fill permits involved in SWANCC and Rapanos, but also section 402’s  National Pollutant Discharge Elimination System (NPDES) permit program, section 311’s oil spill program, section 303’s water quality standards and total maximum daily load programs, and section 401’s state water quality certification process."

OVERVIEW OF THE 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, as determined on a case-by-case basis, including tributaries, adjacent wetlands, and physically proximate waters; or (3) are generally not subject to CWA jurisdiction.

The Draft Guidance views field staff’s application of the factors defining a “significant nexus” to be one of its most important tasks.  Thus, when assessing whether a “significant nexus” exists between traditionally navigable/interstate waters and other waters, “field staff should look for indicators of hydrology, effects on water quality, and physical, chemical, and biological (including ecological) connections or functions . . .  alone or in combination with similarly situated waters, [and] more than speculative or insubstantial effect on the chemical, physical, or biological integrity of downstream traditional navigable waters or interstate waters.”  To this end, the Agencies set forth the following “Summary of Key Points”:

[T]he following waters are protected by the Clean Water Act:

• 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.

[T]he following waters are protected by the Clean Water Act 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 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 protected by the Clean Water Act:

• 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), and swales and ditches that are not tributaries or wetlands.

SIGNIFICANCE

After finalization, the Guidance will be applied on a case-by-case basis to determine whether CWA permits are required for new activities that may affect still and flowing waters.  Prior jurisdictional determinations, however, will not be re-opened for reconsideration.  The Guidance is of significance to any enterprise that may be involved in dredge-and-fill activity or discharges affecting still or flowing water, including wetlands.  Particularly noteworthy is the Agencies’ belief that the proposed Guidance will extend the reach of CWA jurisdiction beyond the scope defined in existing guidance.  That extension may expand CWA permitting requirements beyond presently understood limits.  Moreover, the Draft Guidance appears to be the first step in a process intended to establish a legally binding jurisdictional rule under the CWA.  In contrast to the 2003 and 2008 guidance, the Agencies are interested in having public input.  Potentially affected parties may therefore wish to weigh the pros and cons of responding to their invitation at this crucial first stage.