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I previously posted that EPA and the Army Corps of Engineers’ December 2010 draft guidance document describing how EPA and the Army Corps of Engineers intend to identify jurisdictional waters under the Clean Water Act (CWA) and implement the U.S.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agencies expect, based on relevant science and recent field experience, that under the understandings stated in this draft guidance, the extent of waters over which the agencies assert jurisdiction under the CWA will increasecompared to the extent of waters over which jurisdiction has been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.