Guidance on Clean Water Act Jurisdiction

Posted on May 23, 2011 by Kenneth J. Warren

Observance of International Migratory Bird Day on May 14 marks a good time to examine the latest efforts to define the limits of Clean Water Act jurisdiction over wetlands and other waters. Recall that in the SWANCC case in 2001, the Supreme Court held that the presence of migratory birds did not serve as a sufficient basis for applying Clean Water Act protections to isolated, intrastate wetlands. Since SWANCC, courts and agencies have struggled to define the limits of federal jurisdiction.

On May 2, 2011, EPA and the Army Corps published draft guidance (“Guidance”) in the Federal Register. This Guidance may be a trial balloon that will inform a final guidance document and ultimately duly adopted regulations. Whether there will be challenges to the substantive provisions of the Guidance or the procedure of issuing guidance in advance of formal rulemaking remains to be seen.

Initially, the Guidance is solidly grounded in the language of the Act and the Supreme Court’s 1985 ruling in Riverside Bayview Homes. The Act, the Guidance notes, is applicable to navigable waters which are defined as waters of the United States and the territorial seas. Traditional navigable waters are susceptible to use in commerce and form the core of jurisdictional waters. Navigable waters are not, however, limited to waters that are navigable in fact. The Guidance reflects Riverside Bayview Homes’ holding that wetlands abutting traditional waters are also subject to regulation under the Act.

How far the Act’s jurisdiction extends beyond abutting wetlands remains highly controversial. The Guidance eschews any attempt to define jurisdictional boundaries through a single science-based theory. Instead, the Guidance looks to the Supreme Court’s 2006 splintered decision in Rapanos and adopts alternative standards based on the plurality opinion’s “continuous surface connection” test and Justice Kennedy’s concurring opinion’s “significant nexus” test. If either test is satisfied, jurisdiction attaches.

In keeping with the Rapanos plurality, the Guidance includes as “waters of the United States” those wetlands, non-navigable tributaries and other waters which have a continuous surface connection to jurisdictional waters at least on a seasonal basis. In this respect, the Guidance requires an evaluation of the length and timing of seasonable flow in the watershed or other “eco-region” in question. The Guidance appears to justify use of this test on the ground that its results would be upheld by a majority of the Justices on the Court, albeit for varying reasons.

The Guidance also asserts jurisdiction based on Justice Kennedy’s concurring opinion in Rapanos. Justice Kennedy concluded that the Act regulates waters with a significant nexus to traditional navigable waters. A nexus exists if the waters either alone or in combination with similarly situated waters in the region significantly affect the chemical, physical or biological integrity of traditional navigable waters.

There is much to be said in favor of the significant nexus test. It focuses on the goals of the Act to restore and maintain water quality and allows scientific judgments to inform the Act’s reach. Wetlands and other waters that themselves are not navigable may provide ecological services that benefit navigable or interstate waters. For example, ponds or other features may retain stormwater and thereby protect traditional navigable waters from flooding or pollution. Viewing all such wetlands or other features within a watershed in a comprehensive manner is consistent with modern water management and protective of water resources.

Nevertheless, applying the test leaves much room to debate the significance of the connection between the wetlands, non-navigable tributaries or other waters to be evaluated and the nearest navigable water in specific instances. Despite the Guidance’s goal of clarity, distinguishing a significant reduction of stormwater runoff or pollutant discharge from an insignificant reduction is necessarily subject to considerable uncertainty.

Perhaps the most controversial aspect of the Guidance is its suggestion that where a significant nexus with a wetland exists, all other wetlands within the same watershed may be deemed similarly situated and thereby covered by the Act. Likewise jurisdiction over a single non-navigable tributary may lead to jurisdiction over all non-navigable tributaries in the watershed. This potential blanket classification if applied to waters that do not provide a meaningful contribution to water quality goals is expansive and may leave very few waters unregulated. The implementing agencies are likely to be judicially challenged if they rely on jurisdiction over one wetland or tributary as the basis for asserting jurisdiction over a different wetland or tributary in the same watershed. Given the past willingness of courts to enter the fray even where the Corps has gone through a full rulemaking process, the agencies are not likely to have the final word.

EPA Stays New Boiler MACT Standards

Posted on May 20, 2011 by Karen Aldridge Crawford

By:  Karen Aldridge Crawford and Stacy Kirk Taylor

Facing opposition from a number of business groups and trade organizations and resistance from Capitol Hill, EPA announced on Monday, May 16, 2011 that it was staying indefinitely the effective dates for the new emission standards for boilers (i.e. the boiler MACT standards) that the EPA issued in February of this year.

Acting under a court mandated deadline, EPA finalized the new regulations in February even though the regulations as enacted varied significantly from the initial draft rules issued for comment. Given the significant difference, EPA tried to provide an opportunity for further comment and input, but the Court denied EPA's request for a 15 month extension for issuing a final rule. As a result, EPA went ahead and issued the final rule but immediately issued a reconsideration notice and agreed to continue to receive public comments. This left the regulated community in the untenable position of investing a significant amount of money into technology to comply with the final regulation, when EPA was still reviewing the final regulations and therefore the requirements could change (in which case one may have invested significant money into an unnecessary or misdirected technology).

With an effective date for the new regulations of May 20, 2011, several industry groups, including the National Association of Manufacturers, the American Petroleum Institute, the American Chemistry Council, and the U.S. Chamber of Commerce, petitioned the EPA for a stay of the effective date. A stay would extend the effective date of any new regulations beyond the deadline provided under the Clean Air Act. EPA, however, acting under authority provided agencies in the Administrative Procedures Act to delay new rules "when justice so requires," agreed to a stay the new regulations to provide EPA an opportunity to seek and adequately consider additional comments on the new regulations before requiring facilities to make significant investment in technology. EPA also announced that it will continue to collect data and comments from stakeholders until July 15 of this year, at which point it will start reworking the new rules. 

CWA § 404 - To Assume or Not To Assume ...

Posted on May 13, 2011 by David Van Slyke

 

Yet another state is embarking on the long and arduous road towards assuming regulatory control of the Clean Water Act § 404 wetlands protection program from the US Army Corps of Engineers. As part of newly-elected Republican Governor Paul Page’s overall regulatory reform initiative, the Maine Department of Environmental Protection is planning to seek authority (pursuant to 33 U.S.C. §§ 1344(g) and (h)) to implement the dredge and fill program in lieu of the Army Corps. In the 34 years since the mechanism for states to assume the so-called “404 program” of federal wetlands permitting was created in 1977, many other states have considered it, but only two, Michigan and New Jersey, have completed the process.

State assumption allows a state to regulate wetlands and waterbodies and to issue, condition or deny permits for work in those natural resources. At first blush, state takeover would seem like low-hanging fruit in states’ efforts to eliminate multiple regulatory review layers. However, a 2008 EPA study found that although numerous states have evaluated assumption -- and several have moved significantly down the path -- most abandoned the effort for a number of reasons:

 

  • Resources: Lack of state funding to implement the program and unavailability of Federal implementation grants (unlike the 402 program);
  • Statutory Changes: State laws had to be enacted or amended, and the political will necessary to make such changes often fades in light of environmental NGO opposition;
  • Corps Involvement: Rivers & Harbors Act §10 permitting authority remains with the Corps, thus not eliminating redundancy in ecosystems involving both wetlands and navigable/tidal waterways;
  • EPA Involvement: EPA regulations still require EPA review of permits issued by a state even under an assumed program when those permits involve, among other things, potential impacts to ESA threatened or endangered species, NHPA protected properties, waters of another state, and discharges to “critical areas” (e.g., state/federal parks, wilderness areas, refuges, etc.).
  • Federal Agency Authorization Disputes: At least until recently, there was uncertainty as to whether an ESA §7 consultation requirement (with USFWS and NMFS) had to be met before EPA could grant approval of a state’s application to assume the 404 program. A December 27, 2010 letter from EPA’s Assistant Administrator for Water indicates that EPA has won that tug of war -- no ESA §7 consultation is required.

Also impacting states’ decisions regarding assumption of the 404 program is the continuing uncertainty surrounding the scope of the Corps’ jurisdiction following the Supreme Court’s decisions in SWANCC and Rapanos. EPA and the Corps have attempted to address this issue in various guidance documents. See e.g., “Joint Memorandum” (January 15, 2003)(68 Fed. Reg. 1991) and “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States” (12/2/08).

An April 2011 joint Corps/EPA proposed superseding guidance, notes that “Corps Districts will utilize this guidance to implement Clean Water Act section 404, 33 U.S.C. 1344.” While there is no mention in the guidance of its applicability to state-assumed programs, it is likely that EPA (and the Corps) will require that such guidance, once finalized, be adhered to in any EPA-approved state assumption of the CWA 404 program. Given recent reports  that the April 2011 proposed guidance will dramatically expand the scope of federal jurisdiction over wetlands and waterbodies, states will undoubtedly continue to struggle to identify the benefits in assuming the CWA 404 program.


David B. Van Slyke
Preti Flaherty
One City Center
Portland, Maine 04112-9546

Carbon Disclosure in Perspective

Posted on May 12, 2011 by William L. Thomas

Although even casual observers will have noted the fanfare surrounding the U. S. Securities Exchange Commission (SEC)'s release last year of guidance to public companies on disclosures regarding climate change and its consequences under federal securities laws and regulations, far less attention has been given to other developments in the carbon disclosure milieu that should inform corporate strategy. While the debate over regulation of greenhouse gas (GHG) emissions remains a hot topic in the courts, stakeholder pressure for greater transparency regarding GHG emissions management continues unabated, as illustrated by the evolving agendas of key stakeholders in the U.S. and abroad, two of which are highlighted briefly below.


Carbon Disclosure Project

The Carbon Disclosure Project (“CDP”) is a non-profit initiative launched in London in 2000 “to collect and distribute high quality information that motivates investors, corporations and governments to take action to prevent dangerous climate change.” Approximately 2,500 organizations in over 60 countries now measure and disclose GHG emissions and climate change strategies through CDP. Data is made available for use by institutional investors, corporations, policymakers and their advisors, public sector organizations, government bodies, academics and the public, including via channels on both Bloomberg and Google Finance. Investor CDP requests information on GHG emissions and climate change strategies on behalf of 534 institutional investors with a combined $64 trillion in assets under management and provides climate change data from thousands of the world’s largest corporations. Other notable initiatives include CDP Supply Chain, through which 60 corporate members encourage suppliers to measure and disclose climate change information. CDP's Public Procurement initiative, through which national and local governments can question suppliers about energy use, GHG emissions and related risks, is a beginning to have an impact, including at the US General Services Administration, where work is underway on a project analyzing the costs and benefits of disclosing through CDP. CDP has launched a new product for investors with FTSE and ENDS Carbon called the FTSE CDP Carbon Strategy Index. It has launched initially with two UK indices; the FTSE CDP Carbon Strategy All-Share Index and the FTSE CDP Carbon Strategy 350 Index. Both indices have been designed in response to growing awareness of the significant potential impact of climate change on investment returns. Post Copenhagen, governments across the globe have been working towards holding emissions below levels that would increase global temperatures by 2ºC. Achieving these levels will require increased costs for carbon emissions. The FTSE CDP Carbon Strategy Index Series reflects this carbon risk in its initial offering of ‘carbon-tilted’ versions of the UK’s FTSE All-Share and FTSE 350 indices. The indices feature the same constituents with a variation of weightings based on their exposure to carbon risk, relative to their sector peers. The index series is based on future-oriented criteria rather than past emissions data. It is the first index series to offer a long term forward-looking investment tool that closely tracks established UK benchmarks while supporting the reduction of climate change risks across investment portfolios. This means retail and institutional investors, such as pension funds, can achieve broad and diversified market exposure as well as manage the impact of climate change on their investment. One can gain considerable insight into the state of the art of carbon disclosure from a review of responses to CDP, as well as the cross-cutting analyses compiled by the organization and its partners. To access the most current and archived reports, click here.  

Climate Disclosure Standards Board

The Climate Disclosure Standards Board ("CDSB") is an initiative convened by the World Economic Forum at its annual meeting in 2007 and hosted by the CDP as Secretariat in response to increasing demands for standardized reporting of climate change information in “mainstream” reports. The term "mainstream reports“ is used to describe annual reports in which corporations are required to deliver audited financial results under the corporate, compliance or securities laws. CDSB released a Reporting Framework in September of 2010.  In connection with its work, CDSB has also compiled a database of global developments on legislation that directly or indirectly affects the way in which GHG emissions are calculated and/or the way in which risks are disclosed in corporate and securities filings. CDSB is in the process of upgrading the format to a new platform called “Interactive Standards” where the public and others will be able to see and contribute to the database. Other plans for 2011 center around engagement with corporations, investors and regulators through structured programs designed to align further the needs of preparers and users of climate change-related information.

Does the Wisdom of An Idea Depend on Its Source? Senate Republicans Propose Merging EPA and DOE

Posted on May 10, 2011 by Seth Jaffe

E&E Daily reported today that Senate Republicans are preparing legislation to combine EPA and the Department of Energy. The list of Senators identified as supporting the proposal is a virtual who’s who of conservatives, including Jim DeMint, a favorite of the Tea Party. Accordingly to Richard Burr (R. N.C.), the measure would reduce waste by eliminating duplicative programs in EPA and DOE.

Why is this even a story? Perhaps because Democratic Governor Deval Patrick did the same thing in Massachusetts in 2007, forming what has been considered a very successful Executive Office of Energy and Environment. Perhaps because newly elected Democratic Governor Dannell Malloy recently did the same thing, creating the Department of Energy and Environmental Protection in Connecticut (and naming my friend and law school classmate Dan Esty to be first Commissioner of the combined agency).

So, is this a progressive idea to ensure that energy development, which is a very big part of our economy, is considered together with environmental protection, or is this a regressive idea, intended to eliminate spending? 

Perhaps, just perhaps, it’s simply a good idea.

Politics would determine whether the combined agency leadership would pursue an aggressive environmental protection and clean energy agenda or whether it would instead avoid new regulatory programs in order to facilitate an aggressive program of developing traditional energy resources. Either way, it makes sense to house these two functions under one roof.

For those of us who follow politics as the blood sport it’s become, it will be interesting to see if this idea gets any traction and, if so, where Congressional Democrats line up. Are they going to try to tar this as a simple-minded conservative idea? If so, will the President’s friend Governor Patrick be caught in a Mitt Romney-like dance, trying to argue that it was a good idea for Massachusetts but would not be a good idea nationally? 

Serious kudos to the first liberal Democrat who unambiguously supports this proposal.

Conflict Resolution: Lessons from Environmental Lawyers

Posted on May 5, 2011 by Charles Tisdale

People often ask me why I became an environmental lawyer in 1973 and why I am still practicing environmental law in 2011. I ask other environmental lawyers the same questions. Their answers provide useful information to resolve conflicts in our political and economic systems.

Environmental lawyers representing EPA, state agencies, NGOs and corporations have found ways to resolve environmental problems without the type of litigation and adversarial relationships that are present in other fields of law, such as labor law or personal injury. Environmental lawyers representing all sides regularly attend seminars together and are friends. Such camaraderie is not found in the U.S. Congress and in many state legislatures. How did this collegial atmosphere develop? What can we learn from it?

My discussions with other environmental lawyers resulted in the following conclusion. Environmental lawyers have an interest in the preservation of the planet. We may argue over how clean is clean and what is the best available technology for control of pollution. However, our shared belief that earth must be preserved creates a basis for reasoned debate, which results in reduction of pollution and a successful resolution of conflict.

 

Environmental lawyers meet and negotiate. They don’t hide data or take positions that avoid addressing the real issues in conflict. Environmental lawyers seek a win/win, knowing that the consequences of not achieving a solution may be a loss for both sides.

Environmental lawyers are also translators and problem solvers for clients. We are called upon to explain complex laws in lay terms and to seek solutions rather than stake out positions that lead to protracted litigation. We may fight vigorously over the provisions of a Consent Decree, but it is still a “consent” document in which both sides must give and take.

Environmental lawyers form groups of potentially responsible parties (“PRPs”) to address contamination caused by insolvent operators. In forming a PRP group, we are creating a vehicle for consensus despite individual differences among the parties.

Why is this status relevant for the current challenges America faces? I suggest environmental lawyers have found a way to get over partisanship and posturing. We have found a way to get beyond emotion to focus on what is relevant and how to solve a common problem. We recognized the concept of sustainability long before it became a trite phrase. If businesses could not comply with the environmental laws and still make money, the economy would fail. Saving the earth appeals to consumers who pay more for products that are made from recycled material or from sustainable practices. Coalitions of environmental interest groups, government and business can accomplish far more working together than fighting in courts or legislatures.

What actions would be appropriate for our current adversarial process? One would be meetings in which everyone has an opportunity to express their views and everyone is treated the same. Rather than having two sides, a group with all stakeholders would be a better way to solve many of our political and economic problems. Coming into a meeting with the idea that you have to negotiate a consent agreement with give and take would be a useful solution for many political and economic leaders. Seeking a win/win is a much better alternative than a filibuster. Focusing on solving the problem might avoid some of the needless expenditure of money to vilify the other side. Going to seminars together and drinking a beer at a reception would be a useful exercise for politicians from different parties. Having to produce all of the information to a governmental regulatory agency might prevent a trader from defrauding an investor in some “black box” investment.

 

The Continuing Saga of Cost Recovery and Contribution Claims Under CERCLA Sections 107 and 113

Posted on May 4, 2011 by Jarred O. Taylor, II

In his July 8, 2010 ACOEL blog entry, Fournier “Boots” Gale of this firm reported on the then-most recent court decision dealing with whether and how a plaintiff could recover, under CERCLA, costs it incurred for a cleanup performed under a consent decree or administrative settlement. One of the more intriguing developments for CERCLA practitioners has been the tension between and radical changes to cost recovery or contribution claims under 107 and 113 of CERCLA. Boots reported on the July 2, 2010 decision by a federal judge here in Alabama to grant complete summary judgment to defendants, finding that a party compelled to incur such costs can only proceed under Section 113, and not 107. Because the defendants in that case had also entered into an administrative settlement with EPA for the same site, thus obtaining Section 113 contribution protection, all of plaintiffs’ claims were dismissed. That case is still on appeal to the 11th Circuit. The issue decided by the Alabama federal court--whether compelled costs were recoverable under Section 107, 113, or both—had been left unanswered by the United States Supreme Court in United States v. Atlantic Research Corp., 551 U.S. 128 (2007). Courts have been struggling with this issue ever since.

 

The latest opinion on this issue is from the 8th Circuit, in Morrison Enterprises, LLC v. Dravo Corp., 2011 WL 1237526 (8th Circuit, April 5, 2011). The 8th Circuit was the federal circuit court whose decision was affirmed in the Atlantic Research case, so the result in this case is not surprising. Noting the question unanswered by the United States Supreme Court in Atlantic Research, the Morrison Court, as did the federal court in Alabama, concluded that Section 113 was the appellants’ exclusive remedy, confirming the summary judgment granted by the district court below on the Section 107 claim. One of the Morrison appellants argued to the district court that one of the contaminants it cleaned up was totally unrelated to its operations and, thus, the costs it incurred related to that contaminant were “voluntary” and thus recoverable under Section 107. Interestingly, the plaintiffs in the Alabama case made the same argument. Both the Alabama and 8th Circuit Courts rejected the argument because all of the work was performed under and pursuant to a consent decree, which was broad enough to encompass the costs for cleaning up the contaminant sought to be carved out as voluntary. In effect, even if one wishes to argue later that some costs incurred were for a contaminant for which one had no responsibility, if the costs incurred are pursuant to that consent decree, or administrative settlement, then the costs are not incurred voluntarily and a Section 107 claim is still barred. In a final blow to the cost recovery efforts in this case, the appellant attempted to amend its complaint to assert a Section 113 claim after summary judgment had been entered on its 107 claim, but the district court denied it as untimely (and the Morrison court affirmed on this issue, too).

When Environmental Regulators Try to Enforce Unwritten Policies

Posted on May 3, 2011 by Jeff Thaler

Anyone with substantial experience representing clients before regulatory agencies has likely encountered the frustrating situation where a staff person holds your client to a standard not found either in statute or regulation, but rather in “unwritten policy” of the agency. For most clients, additional review of such actions by agency staff is either not worth the time and money, or are subsumed in a variety of other issues.


Recently, the Maine Supreme Judicial Court had the opportunity to review the legality of certain actions of the Maine Department of Environmental Protection that were based not in Maine law or regulation, but rather upon “unwritten agency customs and practices”. Despite the Court’s normal deference to a state agency’s interpretation of a statute, in the case of Tenants Harbor General Store, LLC v. Department of Environmental Protection,2011 ME 6, 10 A. 3d 722, the court reversed a lower court judgment for the DEP, and ruled in favor of a small business owner.


The case involved the question of whether the installation of new underground gasoline storage tanks at a convenience store must be undertaken pursuant to new regulations that impose additional restrictions on placement in relation to proximity to public and private water supplies, or whether the tanks would be “grandfathered” and thus not subject to the new regulations. When Tenants Harbor General Store, LLC, which purchased the convenience store with gasoline pumps in question in 2007, removed the old tanks in 2008 and sought to install new tanks in the same location, the DEP refused to treat the proposed installation of new tanks as “replacement of an existing facility”; staff instead insisted that this was a new installation subject to new restrictions. The LLC sought judicial review, and the DEP won the first round in Superior Court.


The DEP argued that the prior owner had signed a document notifying the Department that she was abandoning the facility, and that neither the prior owner nor the LLC provided the Department with notice in writing of the intention to replace the removed tanks. However, as noted by the Maine Supreme Court, “the Department does not, however, identify any applicable statute or rule that required a registrant to provide notice of the intent to replace an existing facility.” Moreover, “none of the Department’s forms indicated any requirement that a registrant provide written notice of the intent to replace a facility that was being removed.”


Interestingly, the Department argued in court that “the LLC could have also have learned of the Department’s practice of requiring of written notice by seeking advice from an attorney”; this proposition was rejected by the Supreme Court, which stated that “neither an applicant nor an advocate would have a basis in law to determine that notice was required. Statutes and regulations, not unwritten agency customs and practices, must inform registrants and their attorneys of what is required to register a facility.” (emphasis in original). Thus, the Supreme Court concluded that the Department’s position “was contrary to the statutory and regulatory law”and, therefore, the Court vacated the lower court’s judgment, and remanded with instructions that the Department accept the LLC’s registration of the tanks to replace the grandfathered tanks.

This decision is the first one in Maine to attack the common approach of regulators to act on unwritten agency customs and practices. The Maine Supreme Court’s decision and logic are certainly applicable to similar situations in other jurisdictions, as well as at the federal level, indeed anywhere that regulators act outside of the confines of properly written laws and regulations.

Can We Comment Yet? EPA and Corps Issue Proposed New Rapanos Guidance

Posted on May 2, 2011 by Robert Lawrence

I previously posted that EPA and the Army Corps of Engineers’ December 2010 draft guidance document describing how EPA and the Army Corps of Engineers intend to identify jurisdictional waters under the Clean Water Act (CWA) and implement the U.S. Supreme Court’s decisions in Rapanos and SWANCC had been leaked to the public. EPA's Draft CWA Jurisdiction Guidance Is Leaked At Last.Today, at last, EPA and the Corps have published in the Federal Register their proposed “EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act” (the “Proposed Guidance”). EPA and the Corps will accept public comment on the Proposed Guidance until July 1, 2011. The Agencies state that rulemaking will follow issuance of the final Guidance. 

Once finalized, the Proposed Guidance will supersede EPA’s and the Corps’ “Joint Memorandum,” providing clarifying guidance on SWANCC, dated January 15, 2003 (68 Fed. Reg. 1991, 1995), and “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States,” dated December 2, 2008 (the “Rapanos Guidance”).  Until the Proposed Guidance is final, both the 2003 Joint Memorandum and the Rapanos Guidance remain in effect.

 

The Proposed Guidance is more measured in tone than the December 2010 leaked Draft. For example, the Proposed Guidance eliminates the dig at the Bush administration’s earlier Rapanos Guidance as reflecting “a policy choice to interpret Justice Kennedy’s opinion narrowly, resulting in fewer waterbodies found to be jurisdictional under the CWA than under a more faithful interpretation.” And the Proposed Guidance no longer acknowledges that it will “increase significantly” the number of waters which are subject to Clean Water Act jurisdiction. (Instead, the Proposed Guidance carefully explains that, “The agencies expect, based on relevant science and recent field experience, that under the understandings stated in this draft guidance, 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, though certainly not to the full extent that it was typically asserted prior to the Supreme Court decisions in SWANCC and Rapanos.”) Despite this revised language, the fact remains that the Proposed Guidance will significantly expand the scope of waters subject to Clean Water Act jurisdiction for all waters subject to any of the programs authorized under the CWA.

In an April 14, 2011 letter to EPA Administrator Lisa Jackson and the Assistant Secretary for the Army, Jo‑Ellen Darcy, a bipartisan group of 170 members of Congress urged EPA and the Corps to scrap the Draft Guidance and to proceed with formal rulemaking:

The Agencies cannot, through guidance, change the scope and meaning of the Clean Water Act or the statute’s implementing regulations. If the Administration seeks statutory changes to the Clean Water Act, a proposal must be submitted to Congress for legislative action. If the Administration seeks to make regulatory changes, a notice and comment rulemaking is required.

EPA and the Corps appear to have responded to this Congressional pressure and the input of stakeholders by taking a mixed guidance/rulemaking approach. The Proposed Guidance states:

After receiving and taking account of public comments on this document, EPA and the Corps expect to finalize it and to undertake rulemaking consistent with the Administrative Procedure Act.  This process is expected to start with a proposed rule, to clarify further via regulation the extent of Clean Water Act jurisdiction, consistent with the Court’s decisions.  EPA and the Corps decided to begin this process with draft, nonbinding guidance in order to clarify their existing understandings while also considering and receiving the benefit of public comments.

It remains unclear whether all or portions of the Proposed Guidance actually will be subject to rulemaking under the APA. For example, one of the more controversial aspects of the Proposed Guidance deals with the extent to which “other waters” [or “(a)(3) waters”] are subject to Clean Water Act jurisdiction. “Other waters” are “waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(3). Under the Proposed Guidance, these other waters are subject to Clean Water Act jurisdiction if a fact specific analysis determines they have a significant nexus to a traditional navigable water or interstate water. The Guidance divides these other waters into two categories – those that are physically proximate to other jurisdictional waters and those that are not – and discusses how each category should be evaluated.The Proposed Guidance states expressly that these other waters will be subject to rulemaking:

The agencies expect to further clarify the scope of waters subject to CWA jurisdiction, including jurisdiction over (a)(3) waters after SWANCC and Rapanos, as part of a notice and comment rulemaking.

As part of this rulemaking process, the Agencies will consider how a significant nexus analysis should be conducted for non-physically proximate other waters. The only other issue that the Guidance specifically says will be addressed in the upcoming rulemaking is whether the existence of an ordinary high-water mark alone is sufficient to establish a significant nexus to downstream traditional navigable or interstate waters, without requiring a site-specific analysis.

Given the substantial increase in waters that will become subject to Clean Water Act jurisdiction under the Proposed Guidance, and the resultant impact upon numerous stakeholders, it seems that substantive parts of the Proposed Guidance that will dictate whether or not a water is jurisdictional under the CWA should be subject to APA notice and comment rulemaking. While this appears to be EPA’s and the Corps’ intent, the specific highlighting of certain issues in the Proposed Guidance that will be subject to rulemaking, with silence on other equally controversial issues, leaves open the question of how much of the Proposed Guidance ultimately will be covered by a proposed rule. In any event, interested persons can take advantage of the sixty-day public comment period to help clarify EPA’s and the Corps’ understanding.