Environmental Advisory Bulletin
Corps and EPA Issue Post-Rapanos Guidance
for Wetlands Determinations
By Richard
M. Glick
[June 2007]
One year after a fractured U.S. Supreme Court decided
Rapanos v. United States,1
the Army Corps of Engineers and the EPA have issued a joint guidance
memorandum2
for making wetlands jurisdictional determinations. In summary, the
agencies will assert jurisdiction over “traditional navigable
waters” and will analyze on a case-by-case basis other wetlands
for their “significant nexus” to traditional navigable
waters before asserting jurisdiction. The guidance will be in effect
for six months to allow public input as to whether to conduct a
formal rulemaking and what form the rules should take. The two agencies
also issued a memorandum of agreement as to coordination of their
post-Rapanos assessments.3
In the Rapanos case, land owners challenged the jurisdiction
of the Corps under section 404 of the Clean Water Act over wetlands
that were located several miles from a “navigable” waterway
and thus, it was argued, did not constitute “waters of the
United States” subject to regulation. The Supreme Court split
5-4 and issued five separate opinions. Five justices voted to vacate
the decisions of the court below, holding that the record was not
sufficiently developed to determine whether the wetlands at issue
are jurisdictional. However, a plurality of the Court, led by Justice
Antonin Scalia, held that wetlands must be of a semi-permanent nature
and abut open water to qualify as jurisdictional. This is a test
that many wetlands, previously thought to be jurisdictional, would
fail to meet.
However, in his concurring opinion, Justice Anthony Kennedy would
focus on how the subject wetlands serve the Clean Water Act’s
primary objective, “to restore and maintain the chemical,
physical, and biological integrity of the nation’s waters.”
33 USC § 1251(a). Citing a previous Supreme Court ruling4
that there must be a “significant nexus” between the
wetlands and a navigable water, Justice Kennedy would examine whether
there is “a reasonable inference of ecological connection”
between the wetlands and navigable waters.
In trying to make sense of these competing viewpoints, the Corps
and EPA cited the case of Marks v. U.S., which holds that
when the Court is divided, “the holding of the Court may be
viewed as that position taken by those Members who concurred in
the judgments on the narrowest grounds.”5
Applying the Marks case, the agencies conclude: “Thus,
regulatory jurisdiction under the CWA exists over a water body if
either the plurality’s or Justice Kennedy’s standard
is satisfied.”6
Under the Jurisdiction Memo, the agencies differentiate between
wetlands that meet the Scalia plurality test and the Kennedy test.
They will continue to assert jurisdiction over “traditional
navigable waters,” which were previously defined in regulations
as “[a]ll waters which are currently used, or were used in
the past, or may be susceptible to use in interstate or foreign
commerce, including all waters which are subject to the ebb and
flow of the tide.”7
Jurisdiction would also be asserted over “adjacent”
wetlands, defined as “bordering, contiguous or neighboring.”8
The same is true for relatively permanent non-navigable tributaries
of traditional navigable waters and adjacent wetlands with a continuous
surface connection to the tributaries. All of these meet the Scalia
test and require little analysis.
The Corps and EPA will exercise judgment with respect to less obvious
wetlands to determine whether there is a “significant nexus”
to navigable waters, as Justice Kennedy would require. Thus, ephemeral
tributaries or intermittent streams that do not typically flow year
round would not meet the Scalia test, but may be jurisdictional
under the significant nexus standard. The agencies will assess the
flow characteristics and ecological functions of the tributaries
and adjacent wetlands to see if they “significantly affect
the chemical, physical and biological integrity of downstream traditional
navigable waters.”9
Swales, gullies, washes and other features caused by erosion, as
well as ditches, would not usually be subject to jurisdiction.
In analyzing for a significant nexus, the agencies will consider
a range of hydrologic and ecologic factors. Hydrologic factors include
the volume, duration and frequency of flow; proximity to a navigable
water; the size of the watershed and average annual precipitation.
Ecologic factors include the potential for tributaries to carry
pollutants to navigable waters and the ability of adjacent wetlands
to trap and filter such pollutants; wildlife habitat provided by
the wetlands; and flood storage capability. The Corps and EPA will
coordinate their assessments to make timely jurisdictional determinations
and document their rationale for the record.
In conclusion, the main difference after Rapanos is the
insistence of a direct relationship between the wetland in question
and a traditional navigable water. The Corps and EPA will evaluate
non-traditional navigable waters and wetlands on a case-by-case
basis to discern whether a significant nexus exists. The time frames
they have announced for making such jurisdictional determinations
are ambitious and will prove challenging to implement. As the guidance
documents described here do not have the force and effect of law,
formal rules will still be needed.
Copies of the guidance memoranda may be found at:
www.epa.gov/owow/wetlands/guidance/CWAwaters.html
Footnotes
1
126 S. Ct. 2208 (2006). This case was consolidated with Carabell
v. United States.
2
“Clean Water Act Jurisdiction Following the U.S. Supreme Court’s
Decision in Rapanos v. United States & Carabell v. United
States” (June 5, 2007; referred to as “Jurisdiction
Memo”.
3
“Memorandum for Director of Civil Works and US EPA Regional
Administrators” (June 5, 2007).
4
Solid Waste Agency of Northern Cook County v. United States
Corps of Engineers, 531 US 159 (2001) (“SWANCC”).
5
430 US 188, 193 (1977).
6
Jurisdiction Memo at 3.
7
33 C.F.R. § 328.3(a)(1), 40 C.F.R. § 230.3(s)(1).
8
Jurisdiction Memo at 5.
9
Jurisdiction Memo at 7.
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Copyright © 2007, Davis Wright Tremaine
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