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EPA Guidance Seeks to Clarify Reach of Clean Water Act
May 10, 2011

by Roberta L. Larson
blarson@somachlaw.com

The latest development in the ongoing debate regarding federal jurisdiction over waters is the United States Environmental Protection Agency’s (EPA) release of draft guidance addressing the scope of Clean Water Act (CWA) jurisdiction.  (Draft Guidance on Identifying Waters Protected by the Clean Water Act.)  The CWA applies only to waters that are “waters of the United States” and the question of which waters Congress intended to come within that description has been the subject of much disagreement and several recent United States Supreme Court cases, including Rapanos v. United States, 547 U.S. 715 (2006).  The draft guidance, jointly developed with the U.S. Army Corps of Engineers (Corps), attempts to clarify the reach of CWA jurisdiction.

In Rapanos, the Supreme Court addressed CWA protections for wetlands adjacent to non-navigable tributaries, and issued five different opinions with no single one commanding a majority of the Court.  The plurality opinion, authored by Justice Scalia, stated that “waters of the United States” extended beyond traditional navigable waters to include “relatively permanent, standing or flowing bodies of water.”  The plurality opinion also concluded that only wetlands with a “continuous surface connection” to other jurisdictional waters are considered “adjacent” and protected by the CWA.  Justice Kennedy’s concurring opinion concluded that “waters of the United States” included wetlands that had a significant nexus to traditional navigable waters, “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.’”

What’s in?  The guidance incorporates both the test articulated in the plurality opinion and the “significant nexus” test set forth in Justice Kennedy’s concurring opinion.  Waters coming within federal jurisdiction include traditionally navigable waters, interstate waters, wetlands adjacent to either traditional navigable waters or interstate waters, and non-navigable tributaries to traditional navigable waters that contain water at least seasonally and wetlands that directly abut such tributaries.  Other waterbodies may come within CWA jurisdiction if a “fact-specific analysis determines they have a ‘significant nexus’ to a traditional navigable water or interstate water.”  (Draft Guidance at p. 5.)  Examples of waters that might, based on their particular characteristics, be subject to federal regulation include tributaries to traditional navigable waters or interstate waters and wetlands adjacent to them.  

What’s out?  The guidance also identifies categories of waters that are generally not within the scope of the Act, such as:

  • 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;
  • Water-filled depressions created incidental to construction activity;
  • Groundwater drained through subsurface drainage systems; and
  • Erosional features (gullies and rills), swales and ditches that are not tributaries or wetlands.

The guidance does not affect existing regulatory exclusions from jurisdiction, including exclusions for waste treatment systems and prior converted cropland as outlined at 40 C.F.R. § 122.2.

The guidance is a scaled back version of a prior draft that caused many in the regulated community to express concern that EPA was attempting to expand federal jurisdiction, without notice and comment rulemaking.  The guidance states on its face that it is not binding, and lacks the force of law.  As EPA acknowledges, however, such guidance is frequently used by federal agencies such as EPA and the Corps to explain and clarify their understandings of existing requirements.  EPA’s expectation is that the “extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent over which jurisdiction has been asserted under existing guidance.”  (Draft Guidance at p. 1.)

The Draft Guidance will undergo a 60-day public comment period.  After receiving public comments and finalizing the guidance, EPA and the Corps have announced the agencies will also undertake a subsequent rulemaking pursuant to the Administrative Procedure Act.

The draft guidance and related documents are available on EPA’s website:
http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.  For additional information please contact Roberta Larson at blarson@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
    

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