Over the past five years, landowners, developers, and even the U.S. Army Corps of Engineers (the “Corps”) and the U.S. Environmental Protection Agency (“EPA”) have been struggling with the U.S. Supreme Court’s interpretation of Clean Water Act (“CWA”) jurisdiction. The reason for these struggles was the Court’s split and often confusing decision in Rapanos v. United States.1
When the decision in Rapanos first came out, many property rights and development-related interests believed that the Court’s decision would help narrow the assertion of jurisdiction over certain alleged “waters of the United States,” including but not limited to man-made ditches, wetlands that have no “continuous surface connection to waters of the United States,” intermittent or ephemeral streams, or other waters that do not have an apparent significant nexus with traditional navigable waters. Concerns about an erosion of CWA jurisdiction, however, led to efforts by Congress, EPA, and the Corps to limit any reduction in the scope of CWA jurisdiction.
Since 2007, there have been multiple congressional attempts to “clarify” the scope of the CWA’s jurisdiction. Most often these attempts involved proposing to strike the phrase “navigable waters” from the CWA and replace it with the phrase “waters of the United States” in an attempt to expand jurisdiction and clarify the confusion caused by the Rapanos decision. These efforts have not moved through the Congress because of the controversy that such a change to the language of the CWA would cause. Interestingly, in the 2010 election, the main sponsors of these proposed bills lost their bids for reelection, resulting in no new bills introduced into the House or Senate in 2011. Therefore, it is unlikely that we will see a congressional fix for the confusion surrounding CWA jurisdiction.
Since Rapanos, the Corps and EPA have also sought to explain how to interpret the Court’s decision. Initially, the Corps and EPA issued a joint letter to their field offices explaining the agencies’ interpretation of the Rapanos decision. Not surprisingly, the agencies viewed the decision as having very little impact on their expansive interpretation of CWA jurisdiction.
In 2008, EPA and the Corps issued written guidance explaining how to delineate waters of the United States. Again, this guidance gave Corps staff broad discretion to find jurisdiction under either of the tests adopted by the plurality or Justice Kennedy’s concurring opinion in Rapanos.
Apparently, however, the agencies were not satisfied that they were casting the net broadly enough to capture any and all waters as “waters of the United States,” and they have therefore proposed new guidance to further broaden the scope of CWA jurisdiction. For the first time, the Corps and EPA actually acknowledge that application of their proposed guidance is expected to expand CWA jurisdiction over waters that previously would not have been considered jurisdictional.
To understand how jurisdiction is expanding, we need to compare the existing guidance with the proposed 2011 “Clean Water Protection Guidance” (the “Proposed Guidance”). Under the Proposed Guidance, the following waters are protected by the CWA: traditional navigable waters, interstate waters, wetlands adjacent to traditional waters or interstate waters, nonnavigable tributaries to traditional navigable waters that are relatively permanent (meaning that they contain water at least seasonally), and wetlands that directly abut relatively permanent waters.2 Additionally, the following waters are protected by the CWA if they can be determined to have a “significant nexus” to a traditional water or interstate water: tributaries to traditional navigable waters or interstate waters, wetlands adjacent to jurisdictional tributaries to traditional navigable waters of interstate waters, and waters that fall under the “other waters” category of regulations—both those that are physically proximate to jurisdictional waters and those that are not.3 The categories of protected waters are not changing with the Proposed Guidance, but the way in which certain of these categories are interpreted is changing.
Traditional Navigable Waters
Initially, the Proposed Guidance differs from existing guidance in the definition of a traditional navigable water. Existing guidance permits an agency to make a traditional navigable water determination based on whether a water body might be used in the future for commercial navigation, including commercial recreation. The Proposed Guidance, however, allows the potential for future commercial navigation to be based on physical characteristics of the water or determined by a single trip taken on a raft for the sole purpose of demonstrating navigability. The implication is that the number of traditional navigable water bodies would increase; therefore, more water bodies will be considered jurisdictional by having a significant nexus to a traditional navigable water.
The Proposed Guidance emphasizes Justice Kennedy’s “significant nexus” test to determine whether a water body, particularly a nonnavigable tributary or adjacent wetland, is subject to CWA jurisdiction. In accordance with Justice Scalia’s plurality standard in Rapanos, the existing guidance requires a seasonal continuous flow, typically three months, before an agency may assert CWA jurisdiction over these tributaries. The Proposed Guidance does not require an agency to consider the “continuous” or “three-month” elements, and instead allows the agency to determine jurisdiction based on the “length and timing of seasonal flows in the ecoregion in question.”4
The Proposed Guidance also differs from existing guidance by allowing an agency to find that a water body or wetland has a “significant nexus” to a traditional or interstate water by aggregating all waters within a particular watershed. Under the existing guidance, the “significant nexus” determination was made based on the reach of a specific stream of water. Under the Proposed Guidance, “significant nexus” exists when a water “alone or in combination with other similarly situated waters in the same watershed have an effect on the chemical, physical, or biological integrity” of traditional navigable or interstate waters.5 In addition, the Proposed Guidance considers all headwater streams to have a significant nexus even if the streams are intermittent or ephemeral.
Under the existing guidance, nontidal ditches needed to have relatively permanent flowing water to fall within CWA jurisdiction. Under the Proposed Guidance, a nontidal ditch can be jurisdictional if it has a bed and bank, has an ordinary high-water mark, and connects directly or indirectly to a traditional navigable water or interstate water and it meets one of the following criteria: (a) it was once a natural stream; (b) it is excavated in jurisdictional waters; (c) it has relatively permanent flowing or standing water; (d) it connects two or more jurisdictional waters; and (e) it drains natural water bodies (including wetlands) into the tributary system of a traditional navigable or interstate water.6 Any one of these criteria can convert an otherwise nonjurisdictional roadside or agricultural ditch into a jurisdictional water.
Previously, an adjacent wetland had to be located in proximity to a traditional navigable water. Now, under the Proposed Guidance, an adjacent wetland is jurisdictional if the wetland is located in the same floodplain as a traditional navigable water or interstate water regardless of the site of the floodplain. In addition, adjacency can be established if a wetland has an unbroken surface or shallow subsurface hydrologic connection.
Because the Proposed Guidance did not undergo a notice and comment rulemaking procedure, it is not legally binding and may not constitute a final agency action. Thus, the Proposed Guidance is not subject to legal challenge.
This has led to calls from Congress and industry groups for the Corps and EPA to pursue notice and comment rulemaking, which would provide numerous advantages for a regulated party. First, the Administrative Procedure Act (the “APA”) guarantees that the agency must give interested parties notice of a proposed rule and allow time for interested parties to comment on the rule.7 The comments become part of the rulemaking record on which a court will rely when undertaking judicial review.
Second, the APA requires that all agencies give interested persons the right to petition for the amendment or repeal of a rule.8 And finally, the APA provides that final agency actions are subject to judicial review.9 It is this last advantage that the regulated community is most interested in because it would give the community its day in court if the Corps were to find jurisdictional waters where none were thought to exist.10
Unfortunately, when it had the chance, the Supreme Court did not clarify CWA jurisdiction in 2006. Since then, the Corps and EPA have continually broadened the scope of CWA jurisdiction through a series of guidance documents. In the Proposed Guidance, the Corps finally acknowledges that many of its prior negative jurisdictional determinations would change, which suggests that it is finally time for the Corps and EPA to go through the formal rulemaking process to establish the rules for determining CWA jurisdiction.
1 547 U.S 715 (2006).
2 EPA & Corps, Draft Guidelines on Identifying Waters Protected by the Clean Water Act 5 (2011).
3 Id. 4 Id. at 12-13.
5 Id. at 8 (emphasis added).
6 Id. at 12.
7 Administrative Procedure Act, 5 U.S.C. § 553.
8 5 U.S.C. § 553(e).
9 5 U.S.C. § 704.
10 Interestingly, the U.S. Supreme Court accepted for review in the fall 2011 session a case involving a couple, the Sacketts, who have sought to overturn an EPA jurisdictional determination that has prevented them from building their dream home on Priest Lake in Idaho. This case could have far-reaching implications if the Court allows the Sacketts to challenge EPA’s decision on CWA jurisdiction without having to go through the long and costly permitting process or face judicial enforcement of an alleged violation by EPA. Sackett v. U.S. E.P.A., 622 F.3d 1139 (9th Cir. 2010), cert. granted, No. 10-162, 2011 WL 675769 (U.S. June 28, 2011).