In December 2008, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) issued joint guidance on the terms and procedures used to determine the extent of federal control over water and wetlands, building upon previous guidance issued in June 2007. Legal standards establishing the boundaries of jurisdictional waters, referred to as "waters of the United States," have been under public scrutiny since the U.S. Supreme Court's fractured 2006 decision,
Rapanos v. United States, 547 U.S. 715 (2006), which set recognizable limits on federal control over wet areas. Regulators will look to the so-called "2008
Rapanos guidance" when deciding whether construction activities impacting wetlands, tributaries and other waters require federal authorization.
A construction project owner or operator must receive approval from the Corps via a Clean Water Act (CWA) Section 404 discharge permit before building (i.e., conducting dredge and fill activities) in federally-controlled "waters of the United States." The 2008
Rapanos guidance (hereinafter "2008 guidance") is intended to ensure that jurisdictional determinations and other relevant agency actions being conducted under the Section 404 program are consistent with the
Rapanos decision. AGC joined with organizations representing the housing, mining, agriculture, and energy sectors to
submit detailed comments on the earlier 2007 version of the interagency guidance. Following is a summary of key points contained in the 2008 guidance, along with specific references to how it addresses AGC's substantive and procedural comments.
CATEGORICAL JURISDICTION - The 2008 guidance provides, consistent with previous guidance, that the federal agencies will exercise categorical jurisdiction over the following classes of waters:
- Traditional navigable waters
- Wetlands adjacent to traditional navigable waters
- Relatively permanent non-navigable tributaries of traditionally navigable waters (i.e., where the tributaries typically flow year-round or have continuous flow at least seasonally (at least three months of the year))
- Wetlands that directly abut relatively permanent tributaries
CASE-BY-CASE JURISDICTION - The 2008 guidance provides, consistent with previous guidance, that the federal agencies will assert case-by-case jurisdiction over the following classes of waters when such waters have a "significant nexus" to a traditional navigable water:
- 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
NO JURISDICTION - The agencies generally will not assert jurisdiction over the following features:
- Swales or erosional features (e .g., gullies, small washes characterized by low volume, infrequent, or short duration flow)
- Ditches (including roadside ditches) excavated entirely, and draining only, in uplands where the ditches do not carry a relatively permanent flow of water
In its comments on the 2007 version of the interagency guidance, AGC asked for clarification on these exclusions, but none was given.
What's in the New Guidance?
The 2008
Rapanos guidance generally builds upon the 2007 version, without substantial modifications. The revised 2008 guidance makes only three (3) noteworthy changes to the 2007 version (despite the fact that the agencies received 66,047 public comments on the draft). First, wetlands and waterways are subject to the CWA regime only if they have a relationship, or, in Judge Kennedy's words, a "significant nexus," to what the agencies call "traditional navigable waters" or TNW. The revised guidance clarifies that TNWs are broader than Rivers and Harbors Act Section 10 waters (33 U.S.C. 403), and also include (1) waters deemed to be navigable-in-fact by the courts, (2) waters currently being used for - or that have historically been used for - commercial navigation or recreation, (3) waters that are "susceptible to being used in the future for commercial navigation... [or] recreation" when evidence of such use is more than "insubstantial or speculative."
See 2008
Rapanos guidance page 5, footnote 20. AGC's comments on the 2007 guidance urged EPA and the Corps to better explain the concept of TNW. However, the agencies ultimately took a very expansive view of TNW (finding that commercial
recreation is good enough!), and the 2008 guidance directly conflicts with AGC's position that TNWs should be limited to the Rivers and Harbors Act waters.
Second, the revised guidance attempts to clarify what the Supreme Court meant when it required wetlands and waterways to be "adjacent" to federally-controlled waters to receive their own federal protection. Adjacent is defined in the Corps regulations at 33 C.F.R. § 328.3(c) and means "neighboring, bordering, or contiguous." The 2008 guidance interprets this to mean that wetlands are adjacent to traditionally navigable waters when there is a hydrologic connection, even if the connection is intermittent (a continuous surface connection is not required!); when the wetlands are separated from jurisdictional waters by formations such as man-made dikes or natural river berms; or when the wetlands' proximity to jurisdictional waters is reasonably close, based on an ecological interconnection. AGC is concerned that this new language will, in effect, unlawfully expand the regulatory definition of adjacent as it is applied in the field.
And finally, the 2008 guidance attempts to clarify the term "tributary flow," another issue the Supreme Court introduced in the
Rapanos decision. The revised guidance modifies the process for assessing flow in tributaries (for purposes of determining whether a tributary is relatively permanent), indicating that where the downstream limit is not representative of the stream reach as a whole, "the flow regime that best characterizes the entire tributary" should be used. The 2007 version of the interagency guidance stated that the flow characteristics of a particular stream reach should be evaluated at the farthest downstream limit of the reach (i.e., the point the tributary enters a higher order stream). AGC commented that assessing flow at the downstream point is not the most appropriate approach to characterizing the entire stream.
Significant Nexus
The 2008 guidance is consistent with the
2007 version in specifying that a "significant nexus" analysis will assess the flow characteristics and functions of the tributaries and the functions of the wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters. A significant nexus determination includes consideration of hydrologic and ecologic factors. AGC argued that there needs to be actual data showing impacts to integrity of traditional navigable waters to establish a significant nexus, but the agencies chose not to modify the earlier guidance.
In addition, the 2008 guidance maintains the interagency procedure for reviewing and approving significant nexus-related jurisdictional determinations (JDs).
A memorandum dated January 28, 2008, provides for a shorter, more efficient coordination process (than what was established by the 2007
Rapanos guidance) wherein the Corps districts act without EPA oversight. Specifically, when the Corps asserts CWA jurisdiction following a significant nexus finding, it notifies the appropriate EPA regional office. The EPA region then has 15 days to decide whether to make the final jurisdictional determination as a "special case," using a separate process in place since 1989. If EPA does not respond, the Corps will finalize the JD. AGC had expressed concern that the interagency coordination process outlined in the 2007 guidance was causing delays and recommended that coordination with EPA be ended altogether.
Processing Delays
In its comments on the 2007 version of the interagency guidance, AGC expressed concern regarding delays in finalizing official JDs (i.e., "approved JDs") and implications of those delays for permitting decisions and timing of associated construction projects. AGC pointed out the processing delays caused by data-intensive approved jurisdictional determinations called for by Regulatory Guidance Letter (RGL) 07-01, which was issued as part of the 2007
Rapanos guidance. (RGL 07-01 required all CWA Section 404 applicants to obtain an "approved JD" for each water body impacted by a project, regardless of whether jurisdiction was contested.) In response, the Corps issued
RGL 08-02, clarifying that project proponents may request a preliminary JD based on an "effective presumption of jurisdiction over all of the wetlands and other water bodies at the site," essentially allowing a project proponent to concede jurisdiction. RGL 08-02 is currently in effect and replaces RGL 07-01.
Background
In
Rapanos, the Supreme Court considered whether the federal government could exercise jurisdiction over certain wetlands and tributaries under Section 404 of the Clean Water Act. The Justices issued five separate opinions in
Rapanos (one plurality opinion, two concurring pinions, and two dissenting opinions), with no single opinion commanding a majority of the Court.
As reported previously, in
Rapanos, Justice Scalia explained that waters protected by the Act are those that are "relatively permanent, standing or continuously flowing bodies of water" connected to traditional rivers or streams that can carry navigation, as well as wetlands with " continuous surface connection to such water bodies." Justice Kennedy, however, announced a different jurisdictional test, explaining that the Act protects waters or wetlands that "possess a ‘significant nexus' to waters that are or were navigable in fact or that could reasonably be so made." Writing for the four dissenters, Justice Stevens said lower courts could apply either the Scalia or Kennedy approach.
Lower courts have struggled to determine whether the legal test articulated by Justice Scalia or Justice Kennedy should be controlling, or both. It appears that EPA and the Corps will continue to apply either test and that lower courts may continue to struggle with the application of each test, based on governing law in the respective federal circuits.
See 2008
Rapanos guidance page 3, footnotes 15 and 16;
see also "McWane case" example described below.
While AGC seeks regulatory clarity to Clean Water Act jurisdiction, AGC opposes efforts in Congress to enact legislation that would broaden the definition of "waters of the United States" to include essentially all wet areas within the U.S. The legislation - the Clean Water Restoration Act - was introduced in the House and Senate in the 110th Congress (2007-2008) by Congressman Jim Oberstar (D-MN) and Senator Russ Feingold (D-WI), but neither bill was approved by its committee of jurisdiction. Halting action on the bill was a major victory for the Waters Advocacy Coalition (WAC), a group of development, agricultural, and industry stakeholders formed to oppose the Clean Water Restoration Act, of which AGC is a founding member. WAC is currently gearing up for re-introduction of the legislation in the 111th Congress and preparing to educate new members of Congress on the coalition's concerns with the bill.
McWane Case
On December 1, 2008, the United States Supreme Court denied certiorari in an Eleventh Circuit case,
McWane Inc. v. United States, 505 F.3d 1208 (11th Cir. 2007), the grant of which would have presented the Court an opportunity to reconsider jurisdictional determinations of "waters of the United States" under the Clean Water Act. AGC submitted a brief in support of the government's petition for writ of certiorari, asking the Supreme Court to clarify its decision on federal regulation of wetlands in
McWane, and arguing that "the Corps and EPA need clear and administrable rules defining the scope of the CWA's coverage." The Supreme Court denied certiorari without comment. Notably, in the 2008
Rapanos guidance, the agencies continue to maintain their position that regulatory jurisdiction exists over a water body under the Clean Water Act, if either the plurality test or the Kennedy "significant nexus" test is met. The agencies recognize, however, that in the 11
th Circuit (jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia), the Kennedy standard is the controlling test and the sole method of determining CWA jurisdiction in that Circuit.
For more information, visit the following Web pages:
http://www.epa.gov/wetlands/guidance/CWAwaters.html
http://www.usace.army.mil/CECW/Pages/cwa_guide.aspx