Muddy Waters – Corps and EPA Attempt to Clarify the Clean Water Act
The June 19, 2006, plurality decision (a 5-4 split on ideological grounds) created two tests for determining CWA jurisdiction. 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. The test set out by Justice Kennedy, in his concurrence, would require a finding that a water and adjacent wetland possesses a “significant nexus” necessary for restoring and maintaining the chemical, physical and biological integrity of navigable waters.
After interagency consultation in June 2007, the Corps and EPA (with input from the Justice Department and other federal agencies) issued joint guidance on how to interpret and apply the Court’s ruling. This guidance attempts to clear up the jurisdictional quagmire that has caused great uncertainty for the regulated community. It 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 guidance, which also includes a detailed instructional manual and jurisdictional form that will require Corps districts to gather detailed, site-specific information to assert jurisdiction, is published on the Corps’ regulatory program Web site at: www.usace.army.mil.
According to the guidance, 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., waters that flow year-round, or at least seasonally, 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.”
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. This new guidance will undoubtedly increase the Corps’ workload and create even more confusion.
The impact of this guidance will be especially significant in the arid west which has several ephemeral systems that are a distance away from traditionally navigable waters and only flow in very rare storm events. The linkage between these systems and the closest traditionally navigable waters is often very attenuated, if at all. The more attenuated the linkage, the stronger the evidence that the Corps will need to establish significant nexus. The Corps is currently taking comments on the guidance through January 21, 2008 and will decide whether to extend or modify the guidance or do a rulemaking. Congress is also jumping into the fray. Congressman Oberstar (D-Minn) introduced H.R. 2421, the Clean Water Restoration Act of 2007 (with more than 150 co-sponsors) that would remove the word “navigable’ from the definition of “Waters of the United States” and essentially write into law the Corps and EPA regulations that have been in effect since the 1970s. Senator Russ Feingold (D-Wis) has introduced a parallel bill (S 1870) in the Senate. Congress has been holding hearings on these bills but the prospect of the bills becoming law remains very uncertain at this time. One thing is clear, the scope of federal regulation over wetlands and streams will remain “muddy” for the foreseeable future.