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EPA
Guidance Seeks to Clarify Reach of Clean Water Act
May 10, 2011
by Roberta L. Larson
blarson@somachlaw.com
|
The latest development in the ongoing debate
regarding federal jurisdiction over waters is the
United States Environmental Protection Agency’s
(EPA) release of draft guidance addressing the scope
of Clean Water Act (CWA) jurisdiction. (Draft
Guidance on Identifying Waters Protected by the
Clean Water Act.) The CWA applies only to
waters that are “waters of the United States” and
the question of which waters Congress intended to
come within that description has been the subject of
much disagreement and several recent United States
Supreme Court cases, including
Rapanos
v. United States, 547 U.S. 715 (2006). The
draft guidance, jointly developed with the U.S. Army
Corps of Engineers (Corps), attempts to clarify the
reach of CWA jurisdiction.
In
Rapanos, the Supreme Court addressed CWA
protections for wetlands adjacent to non-navigable
tributaries, and issued five different opinions with
no single one commanding a majority of the Court.
The plurality opinion, authored by Justice Scalia,
stated that “waters of the United States” extended
beyond traditional navigable waters to include
“relatively permanent, standing or flowing bodies of
water.” The plurality opinion also concluded that
only wetlands with a “continuous surface connection”
to other jurisdictional waters are considered
“adjacent” and protected by the CWA. 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.’”
What’s
in? The guidance incorporates both the test
articulated in the plurality opinion and the
“significant nexus” test set forth in Justice
Kennedy’s concurring opinion. Waters coming within
federal jurisdiction include traditionally navigable
waters, interstate waters, wetlands adjacent to
either traditional navigable waters or interstate
waters, and non-navigable tributaries to traditional
navigable waters that contain water at least
seasonally and wetlands that directly abut such
tributaries. Other waterbodies may come within CWA
jurisdiction if a “fact-specific analysis determines
they have a ‘significant nexus’ to a traditional
navigable water or interstate water.” (Draft
Guidance at p. 5.) Examples of waters that
might, based on their particular characteristics, be
subject to federal regulation include tributaries to
traditional navigable waters or interstate waters
and wetlands adjacent to them.
What’s
out? The guidance also identifies categories
of waters that are generally not within the scope of
the Act, such as:
- Artificially irrigated areas that
would revert to upland should irrigation cease;
- Artificial lakes or ponds created
by excavating and/or diking dry land and used
exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
- Artificial reflecting pools or
swimming pools created by excavating and/or
diking dry land;
- Water-filled depressions created
incidental to construction activity;
- Groundwater drained through
subsurface drainage systems; and
- Erosional features (gullies and
rills), swales and ditches that are not
tributaries or wetlands.
The guidance does not affect existing regulatory
exclusions from jurisdiction, including exclusions
for waste treatment systems and prior converted
cropland as outlined at 40 C.F.R. § 122.2.
The guidance is a scaled back version of a prior
draft that caused many in the regulated community to
express concern that EPA was attempting to expand
federal jurisdiction, without notice and comment
rulemaking. The guidance states on its face that it
is not binding, and lacks the force of law. As EPA
acknowledges, however, such guidance is frequently
used by federal agencies such as EPA and the Corps
to explain and clarify their understandings of
existing requirements. EPA’s expectation is that
the “extent of waters over which the agencies assert
jurisdiction under the CWA will increase compared to
the extent over which jurisdiction has been asserted
under existing guidance.” (Draft
Guidance at p. 1.)
The
Draft Guidance will undergo a 60-day public
comment period. After receiving public comments and
finalizing the guidance, EPA and the Corps have
announced the agencies will also undertake a
subsequent rulemaking pursuant to the Administrative
Procedure Act.
The draft guidance and related documents are
available on EPA’s website:
http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.
For additional information please contact Roberta
Larson at
blarson@somachlaw.com.
Somach
Simmons & Dunn provides the information in its
Environmental Law & Policy Alerts and on its website
for informational purposes only. This general
information is not a substitute for legal advice,
and users should consult with legal counsel for
specific advice. In addition, using this
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Simmons & Dunn or its attorneys does not create an
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