• EPA and Corps' Interim Guidance Defines "Waters of the United States"
  • July 9, 2007
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • On June 5, the Environmental Protection Agency and U.S. Army Corps of Engineers issued guidance (“Guidance”) interpreting the extent of jurisdiction over “Waters of the United States” in light of the United States Supreme Court’s June 19, 2006  decision in Rapanos v. United States and Carabell v. United States.  In those cases, a divided Supreme Court set forth differing standards for jurisdiction over tributaries to traditional navigable waters, including intermittent and ephemeral streams and associated wetlands.

    Regulatory ScopeThis Guidance directly impacts permitting and enforcement under Section 404 of the Clean Water Act (CWA) governing discharge of dredged or fill material; however, the Guidance potentially affects the scope of federal jurisdiction under Section 402 National Pollutant Discharge Elimination System (NPDES) Permits, including stormwater permitting and enforcement; Section 311 of the CWA; the Oil Pollution Act; and the Section 303 water quality standards and total maximum daily load program.

    SummaryFollowing the trend in recent post-Rapanos decisions, EPA and the Corps apply a hybrid of the Supreme Court’s plurality opinion and Justice Kennedy’s “significant nexus” approach.  For traditional navigable waters and adjacent wetlands, no change in regulatory approach is proposed from the current provisions at 33 CFR Part 328 and 40 CFR Part 230.  Thus, wetlands “bordering, contiguous, or neighboring” traditional navigable waters” fall within Section 404 jurisdiction.  The Guidance provides that a continuous surface connection need not exist for wetlands to be adjacent to traditional navigable waters and jurisdictional. 

    • Relative Permanence Test for Intermittent Streams and Abutting Wetlands.  Regarding intermittent streams that are tributary to traditional navigable waters, the Guidance applies a “relative permanence” test where jurisdiction over a non-navigable tributary to traditional navigable waters may be found where it is “relatively permanent” — that is, has continuous flow at least seasonally (i.e., for three consecutive months).  Wetlands with a “continuous surface connection” to intermittent streams are also jurisdictional under this test.  A continuous surface connection exists where the wetlands directly abut the tributary (e.g., are not separated by uplands, a berm, a dike or similar feature).
    • Significant Nexus Test for Ephemeral Streams and Associated Wetlands.  Jurisdiction over ephemeral streams (non-navigable tributaries that are not “intermittent streams” under the relative permanence test), as well as wetlands adjacent to such streams, exists if there is a “significant nexus” with traditional navigable waters. “Significant nexus” would depend on site-specific facts and is subject to agency discretion.  According to the Guidance, the agencies will consider physical factors like the volume, duration and frequency of the flow of water in the stream and its proximity to traditional navigable waters.  These include the presence and characteristics of a reliable ordinary high water mark with a channel defined by bed and banks, shelving, wracking, water-staining, sediment-sorting and scour.  They will also consider contextual factors affecting hydrology: the size of the stream’s watershed, average rainfall, average annual winter snow pack, slope and channel dimension.  Jurisdiction will be found if the stream and wetlands are likely to have an effect “that is more than speculative or insubstantial.” 
    • Special Considerations for Man-Made Ditches, Swales, and Erosional Features.  The Guidance states that roadside ditches, swales, and erosional features are generally not “waters of the United States,” but warns that where they are tributary to navigable waters or have a significant nexus, jurisdiction may still be found.  This leaves jurisdictional status subject to site specific and intensive review and analysis.

    Effect/RamificationsFrom a legal perspective, the Guidance tracks current regulatory interpretations; however, more intensive factual and technical analysis will be required for areas adjacent to intermittent and ephemeral streams.  Although some relief can be read in the Guidance for certain ditches, swales, and erosional features, significant reservations in the Guidance require additional analysis, including tracking the potential for flows to traditional navigable waters, and wet season considerations.  For those expecting significant regulatory relief in the area of wetlands regulation, the Guidance will likely be a disappointment.  In a June 5 press conference, Benjamin H. Grumbles, EPA Assistant Administrator for Water, and John Paul Woodley, Jr., Assistant Secretary of the Army (Civil Works), reasserted the Bush Administration’s commitment to no net loss of wetlands acreage and function.  They also signaled that this Guidance is not a material change in the asserted federal scope of jurisdiction prior to Rapanos.

    It remains unclear whether the Guidance will impact jurisdiction under CWA § 301 and the NPDES program.  Though Woodley stressed that the Guidance specifically interprets jurisdiction under Section 404 and Section 10, the definition of “waters of the United States” is identical for NPDES purposes.  Woodley indicated that the agencies may yet come out with additional guidance regarding §§ 402 and 301. 

    This Guidance will not be the last word on jurisdiction, as the agencies will receive comments on the Guidance for an unusually long period of six months.  While the Guidance is not a regulation and thus not subject to judicial review, the Guidance may be subject to future challenge in individual enforcement cases.  Environmental groups like the Natural Resources Defense Council, the Sierra Club, Earthjustice and others already have come out against the Guidance and point to its lack of clarity.  They are promoting legislation authored by House Energy and Commerce Committee Chairman John Dingell (D-Mich.) and Transportation and Infrastructure Committee Chairman Jim Oberstar (D-Minn.) to restore regulatory jurisdiction weakened or eliminated by Rapanos

    The two points that emerge most clearly from the Guidance are that developers can expect little functional change over the near term in the manner in which the agencies determine jurisdiction and that they should consider submitting comment on the Guidance over the coming few months.