Includes Guidance Expanding the Universe of "Waters" Subject to Federal Regulation
On April 27, 2011, the Obama administration released a National Clean Water Framework that reemphasizes its commitment to protecting the health of America’s waters. The Framework, a multi-agency effort, is intended to implement the purpose of the Clean Water Act (CWA): “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”1 It outlines seven broad focus areas, including: (1) promoting innovative partnerships between states, tribes, municipalities and communities on pioneering approaches to protect clean water; (2) enhancing communities and economies by restoring important water bodies such as the Chesapeake Bay,2 Great Lakes, Everglades and the California Bay Delta; (3) innovating for more water efficient communities by updating conservation policies and technology; (4) protecting public health by updating drinking water standards and protecting drinking water sources in rural and urban communities; (5) enhancing use and enjoyment of our waters by developing new programs that encourage the use of waterways and water bodies for recreation; (6) supporting science to solve water problems; and (7) updating CWA and water resources guidance and regulations.
As part of the seventh area of focus, and concurrent with the Framework, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) issued Draft Guidance describing how the agencies will identify waters protected under the CWA. The Draft Guidance states that it “clarifies how EPA and the Corps will identify waters to be protected under the [CWA] consistent with the statute, regulations, Supreme Court case law, relevant science related to aquatic ecosystems and the agencies’ field experience.”3 The Draft Guidance replaces guidance issued by the Bush administration in 2007 and amended in 2008, and effectively expands the reach of CWA jurisdiction over tributaries, open waters and wetlands by directing field staff to apply a “watershed based” approach that does not require extensive site-specific data and analysis. The agencies will seek public comment for 60 days and then issue final guidance. The agencies will then conduct a formal rulemaking process to further clarify the extent of CWA jurisdiction.
Draft Guidance on Identifying Waters Protected Under the CWA
The Draft Guidance is by far the most controversial aspect of the new Framework. The Corps and EPA state that the Guidance is intended to reduce complexity, improve predictability and increase consistency of Corps and EPA jurisdictional determinations in light of the Supreme Court’s decisions in SWANCC 4 and Rapanos.5 In those two cases, the Supreme Court addressed the scope of “Waters of the United States” protected by the CWA.
In SWANCC, the Court addressed the question of CWA jurisdiction over isolated, non-navigable intrastate ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds. In Rapanos, the Court addressed CWA protections for wetlands adjacent to non-navigable tributaries, and the case resulted in five separate opinions with no single opinion commanding a majority of the Court. Justice Scalia authored the plurality opinion, which stated that “waters of the United States” extended beyond traditional navigable waters to include “relatively permanent, standing or flowing bodies of water.”6 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.’”7
After each case, the Corps issued guidance designed to further explain the Court’s decision.8 Despite such further “clarification,” there remained a great deal of confusion among courts and agency field staff over weather the Scalia or Kennedy test applies, which has led to inconsistent jurisdictional determinations across the country.
The Draft Guidance explains that the agencies intend to assert jurisdiction over waters that satisfy either the Scalia (plurality) or Kennedy “significant nexus” tests. Importantly, the Draft Guidance allows the Corps and EPA to expand the universe of waters covered under Justice Kennedy’s “significant nexus” definition by sanctioning use of “watershed analysis” to “aggregate” similarly situated waters and wetlands within a given watershed without requiring the kind of detailed site-specific analysis for individual tributaries and their adjacent wetlands required under the prior guidance. Additionally, the Draft Guidance finds that a hydrologic connection is not necessary to establish a significant nexus. The agencies acknowledge and expect that the number of water bodies found subject to CWA jurisdiction will increase greatly under this new guidance. The Federal Register Notice even states that “the agencies believe that ... the number of waters identified as protected by the Clean Water Act will increase compared to current practice and this improvement will aid in protecting the Nation’s public health and aquatic resources.”9
The Draft Guidance allows field staff to make expansive CWA jurisdiction determinations, beyond the reach of the prior guidance, in seven major ways by:
- clarifying that interstate waters and wetlands are “jurisdictional in their entirety,” therefore including as jurisdictional the entire upstream and downstream extent of a stream or river of the same stream order that crosses a state boundary, including interstate wetlands
- essentially creating a presumption that a tributary has a significant nexus to a Traditionally Navigable Water10 based on the evidence of some flow within that tributary through an observed Ordinary High Water Mark (OHWM)11 or evidence that the tributary has a bed or bank; in other words, if there is an indirect hydrological connection to a Traditionally Navigable Water, and the tributary has a OHWM or bed and bank, then the Draft Guidance presumes the tributary has a significant nexus and is jurisdictional
- allowing the agencies to include all “similarly situated” tributaries, their adjacent wetlands and “other waters” within a watershed that discharge into a “single point” of entry to a Traditionally Navigable Water as meeting the significant nexus test
- clarifying that “adjacent wetlands” include wetlands that may be separated and a distance away from a tributary to a Traditionally Navigable Water if field staff finds that the wetland has a physical or ecological connection to the tributary
- finding that wetlands that are “proximate,” e.g., separated by a man-made berm or the like, even without a hydrological connection, are considered jurisdictional based on scientific literature that shows that proximity alone provides an ecological connection
- broadly including as jurisdictional “other waters,” such as isolated vernal pools, that are not connected to any tributaries flowing to a Traditionally Navigable Water, based on a finding that “collectively” such waters located within the watershed have a significant nexus
- finding that “other waters” that are “proximate,” e.g., separated by a man-made berm or the like, even without a hydrological connection, are considered jurisdictional
Implications of the Draft Guidance
Overall, the Draft Guidance is designed to sanction more “desktop” and inclusive jurisdictional determinations. It relies on broad ecological “watershed” principles and presumptions of ecological connection based on scientific literature to include waters based on minimal tributary-specific data and evidence.
This “aggregation” principle potentially allows field staff to “sweep in” hundreds of tributaries, wetlands and open waters under the CWA by making it much simpler for staff to find that there is, in fact, a significant nexus to a Traditionally Navigable Water. For example, the Draft Guidance would arguably allow field staff to rely on regional studies of large watersheds such as the Chesapeake Bay or the California Bay Delta to include all “similarly situated” waters and their adjacent wetlands/other waters, no matter how remote from the main part of the Bay/Delta, on the theory that excluding any single “similarly situated” water would adversely effect the ecological integrity of that entire watershed.
The impact of this Draft Guidance could especially be felt in the arid West, with many isolated “waters” that are normally wet only during seasonal rain events. Under this Draft Guidance, field staff could “aggregate” normally dry vernal pools or prairie potholes that do not have any noticeable hydrogic connection to the closest navigable water by finding that they perform functions such as flood control during the wet season.
The agencies also concede that the Draft Guidance could significantly increase the costs of mitigation. The report released with the Draft Guidance estimates that the total mitigation costs could go from a current baseline of $82,252,900 to a projected $222,311,906 for wetland, stream and other mitigation required of permittees. These costs will likely have a direct impact on a wide range of other activities including development and infrastructure projects.
In sum, this Draft Guidance allows the agencies to find most waters and wetlands, even ephemeral or intermittent streams, as falling under the CWA’s jurisdiction, except for certain waters that have always been excluded, such as artificial lakes or ponds excavated on dry land. Clearly, the costs of such expansion of jurisdiction will be felt by the regulated community.
The Corps and EPA intend to propose a rule making to accomplish revisions of existing regulations in 2011 “to provide further clarification” of the definition and scope of waters that are jurisdictional under the CWA. The agencies will be seeking comments on the Draft Guidance for 60 days – comments due on July 1, 2011 – to allow all stakeholders to provide input before the final guidance is published.
The final guidance could potentially impose major costs on public and private entities. Holland & Knight is prepared to assist clients in understanding these quickly evolving issues.