Corps and EPA Guidance Attempts to Clarify Clean Water Act Jurisdiction “Muddied” by the Supreme Court in Rapanos v. United States
June 22, 2007
Lawrence R. "Larry" Liebesman- Washington
Rafe Petersen - Washington
It has been almost a year since the Supreme Court’s decisions in Rapanos v. United States and Carabell v. Corps and the question of the scope of Clean Water Act (CWA) jurisdiction over waters and adjacent wetlands that are not physically connected to traditionally navigable waters remains as confusing as ever. The June 19, 2006, plurality decision (a 5-4 split on ideological grounds) created the following two tests for determining CWA jurisdiction.
1) The test set out by Justice Scalia for the plurality requires a permanent hydrologic connection to traditionally navigable waters thereby excluding channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. In order for an adjacent wetland to be considered jurisdictional under this test, it must have a continuous surface connection with the navigable water making it difficult to determine where the “water” ends and the “wetland begins.”
2) The test set out by Justice Kennedy, in concurrence, does not require such a permanent hydrologic connection. Rather, Justice Kennedy would require a finding that a wetland possesses a “significant nexus” necessary for restoring and maintaining the chemical, physical and biological integrity of navigable waters. Under the Kennedy test, the parameter is “if the wetlands, 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.’”
On June 5, 2007, after 11 months of interagency consultation, the Corps and EPA (with significant input from the Department of Justice and other agencies of the federal government) issued joint guidance on how to interpret and apply the Court’s ruling. This guidance (consisting of several memorandums as well as technical documents) attempts to clear up the jurisdictional “quagmire” for Corps districts around the country. Until now, many Corps offices have been reluctant to conduct CWA jurisdictional determinations for areas beyond the limits of traditionally navigable waters and their adjacent wetlands due to the lack of any clear guidance from Washington, leading to significant delays and uncertainty for the regulated community.
Criteria for Applying the Tests
Collectively, the June 5 guidance makes clear that the agencies will assert jurisdiction under either the Scalia test (permanent flow of water) or the Kennedy test (significant nexus) and sets forth criteria for applying both tests. The following documents are relevant to parsing the agency’s process for making jurisdictional determinations: (1) a memo to the field concerning agency coordination when making jurisdictional determinations; (2) a legal memo concerning the application of Rapanos/Carabell; (3) a “Jurisdictional Determinations Form Instructional Guidebook” with illustrations and examples to be used in the field to make jurisdictional determinations; (4) a standardized jurisdictional form to be used by all Corps districts; (5) a regulatory guidance letter; and (6) a questions-and-answers piece on the Rapanos and Carabell cases. The documents are published on the Corps’s regulatory program Web site at: http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm.
According to the legal memorandum, under the Scalia test the agencies will assert jurisdiction over traditionally navigable waters and their adjacent wetlands, non-navigable tributaries of traditionally navigable waters that have “relatively permanent” flow (i.e., it flows year-round, or at least “seasonally” (typically three months), and wetlands that abut these waters if such waters are not separated by roads, berms and similar barriers. For the first time, the agencies define “tributary” as including “natural, man-altered waters that carry flow directly or indirectly into a traditionally navigable water” and as covering “the entire reach of the stream that is of the same order (i.e., from the point of confluence, where two lower order streams meet to form the tributary, downstream to the point such tributary enters a higher order stream).” Under the Kennedy test, the agencies will use a case-by-case “significant nexus” analysis to determine whether waters and their adjacent wetlands are jurisdictional. A “significant nexus” may be found where waters, including adjacent wetlands, affect the chemical, physical or biological integrity of the traditionally navigable water based on consideration of numerous factors. Also, for the first time, the agencies described certain waters that will not be considered jurisdictional. These include swales or erosional features such as gullies, small washes and ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.
The Significant Nexus Test in the Arid West
The “significant nexus” test (which the Ninth Circuit held in Northern California River Watch v. City of Healdsburg is controlling) will likely be the most difficult to apply in the field, especially in the arid west. The guidance notes that certain ephemeral features in the West that are tributaries may have a significant nexus to traditionally navigable water (TNWs). The agencies give the example of ephemeral tributaries that “collect and transport water or sometimes sediment from the upper reaches of the landscape to TNWs” noting that these “ephemeral tributaries and associated riparian corridors may provide habitat for wildlife and aquatic organisms.” This will require the agencies to assess factors such as the flow characteristics (e.g., volume, duration and frequency, physical characteristics, proximity to TNWs, size of watershed, etc.) and functions of the tributary itself and all adjacent wetlands (e.g., potential to carry pollutants to TNWs, provision of aquatic habitat that supports of TNW and maintenance of water quality in a TNW) to determine if they will significantly affect the chemical, physical and biological integrity of the downstream TNW. The Corps instructional guidebook contains directions for how to document this information with accompanying data sheets.
The arid west has a number of ephemeral systems that are a distance away from TNWs and that only flow in very rare storm events. The linkage between these systems and the closest TNW is often very attenuated, if at all. The more attenuated that linkage the stronger the evidence that the Corps will have to gather to support a significant nexus finding under this guidance. Indeed, in the absence of strong evidence, many of these systems could fall into the “erosional features” category that, according to the guidance, are not jurisdictional waters. While the regulated community can expect the Corps to try to include as many of these systems as possible, such an effort may not be sustainable under the “significant nexus” test and may very well conflict with Justice Kennedy’s language that when “wetlands effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’” Yet, the guidance takes the position that “certain ephemeral waters in the arid west are distinguishable from the geographic features described [in the guidance] where such ephemeral waters are tributaries and they have a significant nexus to down stream [TNWs]” given their role in providing habitat, water transport and sediment trapping. Thus, it is clear that the agencies are not about to relinquish jurisdiction over dry washes and other areas in the arid west without a fight.
This guidance is immediately effective as it is not considered rulemaking subject to notice and comment. However, the agencies will take comments for 180 days and have asked for input on how it can be made more effective as applied in the field. After reviewing the comments, the agencies will determine whether to revise the guidance as well as whether to actually issue a formal rule.
Expect Considerable Litigation
Despite this effort to clarify jurisdiction, considerable litigation can still be expected. In announcing the guidance, Corps and EPA officials stated that permit applicants are free to ask the Corps to reevaluate prior jurisdictional determinations in light of the guidance. Further, the statement that either the Scalia or Kennedy test may be used conflicts with decisions of the Ninth and Seventh Circuit Courts of Appeals holding that the Kennedy significant nexus test is controlling. In contrast, the First Circuit has upheld the use of either test.
Congress is also about to jump into the fray. Congressman Oberstar recently introduced H.R. 2421, the Clear Water Restoration Act of 2007 with over 150 cosponsors that would remove the word “navigable” from the definition of “Waters of the United States” and would write into law the EPA and Corps regulations that had been in effect since the late 1970s. Senator Feingold expects to introduce a companion bill in the Senate shortly. The prospect of these bills becoming law, however, is very uncertain.
One thing is clear, despite the agencies’ efforts to provide guidance after Rapanos, the picture will remain quite muddy for the foreseeable future.
For more information, e-mail Lawrence R. Liebesman or Rafe Petersen atlawrence.liebesman@hklaw.com or rafe.petersen@hklaw.com, respectively, or call toll free, 1-888-688-8500.