1. Introduction

On April 27, 2011, the Obama Administration released a national Clean Water Framework affirming its commitment to protecting the nation’s waters. The framework outlines a series of actions that are planned and being implemented by the federal government to ensure the safety of the nation’s waters. The framework sets forth various actions including: partnerships with states, local governments, and other stakeholders to restore urban waters, promote sustainable water supplies, and protect clean water; restoration of important water bodies such as the Chesapeake Bay, California Bay-Delta, Great Lakes, Gulf of Mexico, and the Everglades; promoting water efficiency policies and technologies; reducing contaminants in drinking water by updating standards; promoting stewardship of recreational waters; updating Clean Water Act (“CWA”) policies and guidelines; and using updated science and research to improve water policies and address pollution.

As part of the framework, the Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“Corps”) issued draft guidance that supersedes previous guidance issued in 2003 and 2008 regarding waters protected by the CWA. The draft guidance is more comprehensive than the January 15, 2003 Joint Memorandum clarifying CWA jurisdiction in light of the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”), and the December 2, 2008 guidance following the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006). EPA and the Corps indicated that at some point in the future, they will initiate rulemaking proceedings that will encompass the principles set forth in their guidance.

  1. Discussion of Draft CWA Guidance
  1. CWA Legal Principles

The draft guidance clarifies how EPA and the Corps will identify waters protected by the CWA in light of the CWA, existing regulations, and the Supreme Court’s decisions in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), SWANCC, and Rapanos. Several CWA provisions impose various prohibitions and limitations that apply to “navigable waters” or “waters of the United States.” Navigable waters are defined by the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). CWA regulations define “waters of the United States” to include: waters currently, previously, or susceptible to use in interstate or foreign commerce; all interstate waters including interstate wetlands; all other waters such as intrastate lakes, rivers, streams, wetlands, and ponds whose use, degradation, or destruction could affect interstate or foreign commerce; tributaries of jurisdictional waters; and wetlands adjacent to jurisdictional waters that are not wetlands. 33 C.F.R. § 328.3(a); 40 C.F.R. § 230.3(s). In Riverside Bayview, the Court held that wetlands adjacent to a traditional navigable water were properly considered “waters of the United States.”

In SWANCC, the Supreme Court held that CWA jurisdiction could not be based solely on the presence of migratory birds. In Rapanos, the Court addressed CWA jurisdiction over wetlands adjacent to non-navigable tributaries, and issued a plurality opinion holding that CWA jurisdiction extends to “relatively permanent, standing or continuously flowing bodies of water,” and that only wetlands with a “continuous surface connection” to other jurisdictional waters are considered “adjacent” and thereby subject to CWA jurisdiction. 531 U.S. at 739, 742. Justice Kennedy issued a concurring opinion that included wetlands with a significant nexus to traditional navigable waters with the scope of CWA jurisdiction, “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.’” Id. at 780. The draft guidance uses Justice Kennedy’s “significant nexus” test to define more broadly than the existing guidance, the “waters of the United States” that are subject to regulation under the CWA. The guidance also explains the legal basis for asserting jurisdiction over waters not covered by the previous guidance, such as interstate waters. The draft guidance is less aggressive than an earlier draft that indicated the number of waters subject to the CWA under the guidance would “increase significantly.” However, the current draft guidance states that “the extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent of waters over which jurisdiction has been asserted under existing guidance,” but not to the extent asserted prior to the Supreme Court’s SWANCC and Rapanos decisions.

  1. Traditional Navigable Waters

The draft guidance reasserts that the CWA covers traditional navigable waters, which include: waters subject to Sections 9 or 10 of the Rivers and Harbors Act; waters that a federal court has determined are navigable in fact; waters currently or historically used for commercial navigation; and waters that are susceptible to being used for commercial navigation in the future.

  1. Interstate Waters

The guidance declares that EPA and the Corps will continue to assert jurisdiction over interstate waters consistent with current regulations that define “waters of the United States” to include interstate waters. Interstate waters, which were not addressed in the 2008 guidance, include lakes, ponds, and similar water features crossing state boundaries. The guidance indicates that stream order can be used to determine the upstream and downstream extent of a stream or river crossing a state boundary that should be considered the interstate water.

  1. Tributaries

The guidance defines a tributary as a water that “contributes flow to a traditional navigable water or interstate water, either directly or indirectly by means of other tributaries.” Tributaries can be natural or man-made, and are characterized by the presence of a channel with a defined bed and bank. Tributaries that have been channelized by being lined with concrete are still considered tributaries. The existence of an ordinary high water mark can be used to identify the lateral limits of a tributary. Certain types of features, such as gullies, rills, and natural and man-made swales, are not considered tributaries under the guidance, although some ditches and swales may meet the regulatory definition of wetlands.

Tributaries will be recognized as subject to CWA jurisdiction under either one of the two Rapanos tests – the plurality standard or Justice Kennedy’s “significant nexus” standard. Under the plurality standard, non-navigable tributaries are subject to the CWA if: 1) they are connected to a downstream traditional navigable water; and 2) flow in the tributary is at least seasonal, except during drought years. If the tributary is not relatively permanent, it may still be subject to the CWA under Justice Kennedy’s test if: 1) it is a tributary to a traditional navigable water or interstate water1; and 2) alone, or in combination with other tributaries in the watershed, it has a significant nexus with the traditional navigable water or interstate water. The watershed is to be defined by the area draining into the traditional navigable water or interstate water. EPA and the Corps indicated that although it is expected that tributaries will have a significant nexus with downstream traditional navigable waters or interstate waters, agency field staff must document a site-specific significant nexus analysis for all tributaries that are not relatively permanent. Some functions provided by tributaries that may significantly affect the physical, chemical, or biological integrity of downstream traditional navigable waters or interstate waters include: distributing sediment to maintain stream and riparian habitat; nutrient cycling and removal; providing habitat for aquatic species living in and near the stream that may use the downstream waters for other portions of their life stages; improving or maintaining the biological integrity of downstream waters; and transferring nutrients to support downstream food webs.

  1. Adjacent Wetlands

Under the regulations, “adjacent” is defined to mean “bordering, contiguous, or neighboring.” 33 C.F.R. § 328.3(c); 40 C.F.R. § 230.3(b). The guidance indicates that a wetland will be considered to be adjacent if at least one of three criteria is met: 1) an unbroken surface or shallow sub-surface hydrologic connection between the wetland and the jurisdictional water; 2) the wetland is physically separated from the jurisdictional water by man-made dikes or barriers, natural river berms, or beach dunes; or 3) the wetland is reasonably close and therefore neighboring to a jurisdictional water. For the third criteria, the guidance indicates that a wetland is considered neighboring if there is a demonstrable ecological interconnection between the wetland and the jurisdictional waterbody.

Under the Rapanos plurality standard, adjacent wetlands will fall under CWA jurisdiction if: 1) the wetland is adjacent to a relatively permanent, non-navigable tributary that is connected to a downstream traditional navigable water; and 2) a continuous surface connection exists between the wetland and a relatively permanent tributary where the wetland directly abuts the water.

Under Justice Kennedy’s test, an adjacent wetland is jurisdictional if it is adjacent to a traditional navigable water or non-wetland interstate water, or, adjacent to a tributary, lake, reservoir, or other jurisdictional water other than a wetland, and either alone or in combination with other adjacent wetlands in the watershed, has a significant nexus to the nearest downstream traditional navigable or interstate water. Considerations to be used in determining whether a significant nexus exists include functions such as sediment trapping, nutrient recycling, pollutant trapping and filtering, retention or attenuation of flood waters, runoff storage, and provision of habitat. The guidance indicates that in general, tributaries and their adjacent wetlands function as an integrated hydrologic system and thereby will affect the integrity of downstream traditional navigable waters or interstate waters.

  1. Other Waters

EPA and the Corps indicated they will make case-by-case, factspecific jurisdictional determinations using principles set forth in the guidance for the “other waters” included in the regulatory definition of “waters of the United States,” which include intrastate lakes, rivers, steams, mudflats, sandflats, sloughs, and ponds. “Other waters” that are located in close physical proximity (i.e., satisfy the regulatory definition of “adjacent”) to traditional navigable waters, interstate waters, or their jurisdictional tributaries, and that significantly affect the chemical, physical, or biological integrity of traditional navigable waters or interstate waters either alone, or in combination with similarly situated proximate “other waters” in the region, will be subject to fact-specific jurisdictional determinations. In making these determinations, EPA and the Corps will evaluate all physically proximate “other waters” in the same point-of-entry watershed together. The guidance indicates that establishing a significant nexus for “other waters” that are not adjacent to jurisdictional waters will be more challenging, and therefore agency field staff must continue the current practice of referring such determinations to agency headquarters and obtaining a formal project-specific approval before asserting or denying jurisdiction.  

  1. Non-jurisdictional Waters

The draft guidance repeats the agencies’ prior position on categories of waters that are generally not under the scope of CWA jurisdiction.

These non-jurisdictional waters include:

  • Wet areas that are not tributaries or open waters and do not meet the regulatory definition of wetlands;
  • Waterbodies excluded from coverage under the CWA by existing regulations;
  • Waters that lack a significant nexus that is required for jurisdiction;
  • Artificially irrigated areas that would revert to upland if irrigation ceased;
  • Artificial lakes or ponds created by excavating and/ or diking dry land and used exclusively for stock watering, irrigation, settling basins, or rice growing;
  • Artificial reflecting ponds or swimming pools excavated in uplands;
  • Small ornamental bodies of water created by excavating and/or diking dry land to retain water for aesthetic reasons;
  • Water-filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel until the construction or excavation is abandoned and the resulting body of water meets the definition of waters of the United States;
  • Groundwater drained through subsurface drainage systems; and
  • Erosional features, swales, and ditches that are not tributaries or wetlands.
  1. Conclusion

The draft guidance represents an attempt by EPA and the Corps to consolidate principles regarding the coverage of all waters of the United States under the CWA, based on the three Supreme Court decisions that have interpreted this provision, the CWA, and their regulations. EPA and the Corps indicated that updated guidance was necessary to reflect lessons learned since the most recent guidance was issued in 2008, and the agencies’ current understandings on CWA jurisdiction. The draft guidance is not a rule, and therefore it is not binding and lacks the force of law. However, its use by EPA and the Corps in enforcement actions, permitting decisions, and jurisdictional determinations will give the guidance legal effect. EPA and the Corps have estimated approximately $79 to $151 million per year in indirect mitigation costs due to implementation of the proposed guidance compared to the existing guidance, which represents an approximate increase of 4% from current estimated baseline mitigation costs of $2.1 to $3.9 billion per year. Many in the regulated community have called for EPA and the Corps to revise their rules to reflect the principles set forth in guidance, particularly to the extent that the guidance is expanding the scope of waters that will be considered subject to CWA jurisdiction. Perhaps in part due to these concerns, the agencies indicated that after finalizing the draft guidance they will initiate rulemaking proceedings to further clarify the extent of CWA jurisdiction.

Notice of the draft guidance was published in the Federal Register on May 2, 2011. Comments on the draft guidance will be received until July 1, 2011. Since the finalized guidance will be used to inform the rulemaking process, the public comment period for the draft guidance presents an opportunity for the public to participate at an earlier stage.