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 memorandum 2 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
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.