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EPA and Army Corps Propose Updated Wetlands Guidance to Clarify the Definition of “Waters of the United States” and Thus the Reach of the Clean Water Act

By: Vicki Shiah

On April 27, 2011, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“ACOE”) issued joint draft guidance seeking to clarify which wetlands can be considered “waters of the United States” protected by the Clean Water Act (“CWA” or the “Act”).  The draft guidance interprets the agencies’ jurisdiction under the Act more expansively than existing guidance, which was issued in 2008.

Background

The Clean Water Act applies to “waters of the United States,” a term that has been regulatorily defined by both EPA and ACOE[1], and which has been extensively litigated – particularly in regard to the extent to which this term encompasses wetlands.  In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court held that wetlands adjacent to a traditional navigable water were properly considered to be “waters of the United States.”  In Solid Waste Agency of Northern Cook County v. ACOE, 531 U.S. 159 (2001), the Court addressed the question of federal jurisdiction over isolated, non-navigable, intrastate ponds, and concluded that such jurisdiction could not be based solely on the presence of migratory birds.  In Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”), the Court addressed the question of CWA jurisdiction over wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters located 11-20 miles away from the wetlands.  The Court failed to reach a majority on this question.  Four justices, led by Justice Scalia, rejected the ACOE’s assertion of jurisdiction, Justice Kennedy concurred in the judgment, and four dissenting justices led by Justice Stevens deferred to the agency’s assertion of jurisdiction.  Since Rapanos, courts have applied both the plurality’s view and Justice Kennedy’s approach, which are described in greater detail below.

  • The plurality opinion authored by Justice Scalia stated that, in addition to traditional navigable waters, “waters of the United States” are “relatively permanent, standing or flowing bodies of water,”[2] and that “only those wetlands with a continuous surface connection to [such water bodies], so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”[3]
  • Justice Kennedy concluded that “waters of the United States” included wetlands that had a significant nexus to traditional navigable waters, and that wetlands could possess such a nexus if 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.’” [4]

The Court’s fractured opinion left much confusion in its wake, including over which standard to apply.  In a 2008 guidance document aiming to clarify the scope of CWA jurisdiction, EPA and ACOE took the position that regulatory jurisdiction under the CWA exists over a water body if either the plurality’s or Justice Kennedy’s standard is satisfied. The new guidance, which would supersede the 2008 guidance, is the agencies’ most recent attempt to clarify the evolving and elusive definition of “waters of the U.S.” as pronounced by the Supreme Court.

The 2011 Draft Guidance

As compared to the 2008 guidance, the new guidance places a greater emphasis on Justice Kennedy’s “significant nexus” test, providing an extensive description of how the test is to be applied and discussing a broader range of situations where this test would be dispositive.  In another departure from existing guidance, the new guidance explicitly describes interstate waters as categorically jurisdictional.  Furthermore, the new guidance modifies the agencies’ positions concerning swales, erosional features, and upland-draining ditches characterized by infrequent or low volume flow.  While the 2008 guidance states that these bodies are not jurisdictional, the new guidance only excludes them if they are not tributaries or wetlands, and discusses how to determine if they are tributaries or wetlands.  Finally, as compared to the 2008 guidance, the new proposed guidance provides a more explicit and extensive list of waters over which the agencies would generally not assert jurisdiction, thus providing greater certainty that activities affecting these waters would not trigger federal jurisdiction.

The following table compares selected key features of the 2008 guidance and the 2011 Draft Guidance:

2008 Guidance 2011 Draft Guidance

Agencies Categorically Assert CWA Jurisdiction Over the Following Waters:

  • Traditional navigable waters
  • Wetlands adjacent 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 (typically three months)
  • Wetlands that directly abut such tributaries
  • 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
  • Wetlands that directly abut relatively permanent waters

Agencies Will Assert CWA Jurisdiction Over the Following Waters if a Fact-Specific Analysis Finds a Significant Nexus to a Traditional Navigable Water (or to an interstate water, under the 2011 Guidance only):

  • Non-navigable tributaries that are not relatively permanent
  • Wetlands adjacent to non-navigable tributaries that are not relatively permanent
  • Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary

 

  • Tributaries to traditional navigable waters or interstate waters
  • Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
  • Waters that fall under the “other waters” category of the regulations, at 33 C.F.R. § 328.3(a)(3). 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.

Agencies Will Not Generally Assert CWA Jurisdiction Over the Following Waters:

  • Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow)
  • Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water
  • 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 body 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
  • Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands

Public Participation and Future Regulations

EPA and ACOE have opened the draft to public comment.  Comments are due July 1, 2011 and may be submitted here (click on the “What Do You Think” tab in the middle of the page).  While borrowing the notice-and-comment procedures applicable to rulemaking, the Guidance explicitly states that it is “not a rule, and hence is not binding and lacks the force of law.”[5] The agencies have indicated their intent to commence rulemaking after the guidance is finalized.[6] However, the American College of Environmental Lawyers (“ACOEL”) has pointed out that certain aspects[7] of the 2011 Draft Guidance are identified as subject to future rulemaking, but other issues are not, “leav[ing] open the question of how much of the Proposed Guidance ultimately will be covered by a proposed rule.”


[1] See 33 C.F.R. § 328.3, 40 C.F.R. § 122.2, 40 C.F.R. § 230.3(s).

[2] Rapanos, 547 U.S. at 739.

[3] Id. at 742.

[4] Id. 779 – 80.

[5] Draft 2011 Guidance 1.

[6] Id.

[7] In particular, the ACOE article notes that Draft 2011 Guidance indicates the agencies’ intent to provide clarification via future rulemaking on (a), CWA jurisdiction over “other waters” defined in 33 C.F.R. § 328.3(a)(3), and (b) whether the existence of an ordinary high water mark alone is sufficient to establish a significant nexus to downstream traditional navigable or interstate waters, without requiring a site-specific analysis.

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