U.S. EPA/Army Corps Guidance on Waters of the U.S. Likely to Expand Federal Jurisdiction

The United States Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly issued a draft document on May 2, 2011, entitled “Draft Guidance on Identifying Waters Protected by the Clean Water Act.”  (Draft Guidance)  After having had a few days to review the Draft Guidance as well as reactions to it in the environmental press, I provide a summary below.

Scope and Background of Draft Guidance

The Draft Guidance seeks to better define “waters of the United States” as that term is used throughout the federal Clean Water Act (CWA).  Ultimately, the jointly issued Guidance will have far reaching effects on water issues throughout the country.  Releases to “waters of the United States” are subject to many requirements found in the Clean Water Act, including: Corps issued dredge and fill permits (CWA §404), water quality certifications (CWA §401) necessary to obtain dredge and fill permits, oil spill requirements (CWA §311), impaired waters requirements (CWA §303) including Total Maximum Daily Loads, water quality standards (CWA §303), and EPA- and state-issued National Pollutant Discharge Elimination System permits (CWA §402).

The new guidance purports to harmonize several U.S. Supreme Court cases:  United States v. Riverside Bayview Homes, Inc., Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, and Rapanos v. United States.  The three cases, all purporting to clarify the definition of “waters of the United States,” did not necessarily do so, especially considering that the Rapanos case included 5 separate opinions and no majority opinion from the Court (one plurality, two concurring, and two dissenting).

Draft Guidance Will Expand Federal Jurisdiction

While EPA and the Corps state that they are implementing the Supreme Court’s decisions and that the Draft Guidance is consistent with those decisions, it would appear that the Draft Guidance selects elements from the decisions that lead to the broadest possible definition of “waters of the United States.”  In fact, the agencies fully admit that “under this proposed guidance the number of waters identified as protected by the Clean Water Act will increase compared to current practice.”

Waters Now Deemed Waters of the United States

Replacing prior guidance issued in 2008, the Draft Guidance asserts federal jurisdiction over the following types of waters:

• Traditional navigable waters
• Interstate waters
• Wetlands adjacent to either traditional navigable waters or interstate waters
• Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally, and
• Wetlands that directly abut relatively permanent waters.

In addition, EPA and the Corps will take jurisdiction over the following types of waters if a fact-specific analysis determines they have a significant nexus to traditional navigable waters or interstate waters:

• Tributaries to traditional navigable water or interstate waters
• Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters, and
• Waters that fall under the “other waters” category of the regulations (including waters that are physically proximate to other jurisdictional waters, as well as those that are not).

Major Changes Found in the Draft Guidance

Previously, all interstate waters were not automatically jurisdictional; however, the Draft Guidance would make such waters so, regardless of their being navigable in fact or being hydrologically connected to other waters.  Furthermore, with regard to “other waters” the Draft Guidance asserts federal jurisdiction over “isolated, intrastate, non-navigable waters and wetlands, even if they are not physically proximate to other jurisdictional waters, if there is a ‘significant nexus’ to traditional navigable water or interstate water.” Thus, some “other waters” such as small natural ponds, playa lakes, mudflats, or vernal pools may be deemed “waters of the United States” under the CWA with all of the applicable regulation coming with such a status.

Another change found in the Draft Guidance is that “certain waters that were not subject to the CWA under the 2008 guidance may become jurisdictional under the proposed guidance. For example, ditches may be considered tributaries and ditches or swales may be considered wetlands, and thus be subject to the ‘significant nexus’ test.”

Also of note is that the Draft Guidance in determining jurisdictional waters through the “significant nexus” test will treat the same not only waters in the same “region” as past guidance did, but waters in the same watershed.  Watersheds can be extremely large—as large as 250,000 acres. Under the Draft Guidance, once an area (ditch, wetland, or other proximate water) has been deemed jurisdictional, other “waters” of the same type and in the same watershed can be deemed jurisdictional based upon the “significant nexus” test.

All of these changes from prior guidance found in the Draft Guidance guarantee that agency staff following the terms of the new document will find additional waters to be within federal jurisdiction than previously.

A Rule That Isn’t a Rule

Even before the Draft Guidance was officially released, members of Congress realized that it was a “de facto” rule despite the EPA and Corps stating that the Draft Guidance is “not a rule, and hence it is not binding and lacks the force of law.” In 2009 and 2010, Congress had the opportunity to expand the scope of the Clean Water Act in a way similar to what the Draft Guidance is now doing, but refused to do so.   With a lack of Congressional directive, and in light of the lack of a clear judicial direction, it is quite possible that the Draft Guidance will be treated as a de facto rule by the agencies despite statements to the contrary.

How You Can Impact the Process

EPA and the Corps are currently accepting comments on the Draft Guidance until July 1.  Parties with lands that may become subject to CWA jurisdiction due to application of the tenets in the Draft Guidance should provide comment and track further opportunities for comment on the rulemaking that the agencies have promised will follow after final adoption of the Draft Guidance.

Impact on Ongoing California Policymaking

The California State Water Resources Control Board is presently developing a policy to govern all non-federal, state-only waters.  Comments on the CEQA scoping document for the policy are due on May 20, 2011.  It is unknown how the State Water Board will react to the growing federal jurisdiction presented by the Draft Guidance.  However, with a growing federal jurisdiction, it is likely that the state-only policy may lose some sense of necessity, should the scope of the state-only policy become so narrow as to be immaterial.