Posted on March 3, 2011 by Robert Lawrence
The suspense is over. Inside EPA just released EPA’s December 2010 Draft Guidance describing how EPA and the Army Corps of Engineers intend to identify jurisdictional waters under the Clean Water Act (CWA) and implement the U.S. Supreme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. The Agency has yet to formally release the 2010 Draft Guidance.
As anticipated, the 2010 Draft Guidance significantly expands the scope of waters over which EPA and the Corps assert jurisdiction. Indeed, the Draft Guidance unabashedly exclaims that, “the Agencies expect that the numbers of waters found to be subject to CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.” The Draft Guidance takes a dig at the 2008 Rapanos guidance stating that the older guidance “reflected a policy choice to interpret Justice Kennedy’s opinion narrowly, resulting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.”
The 2010 Draft Guidance, still marked as “Deliberative Process; Confidential”, would supersede EPA’s and the Corp’s December 2008 Revised Guidance on Clean Water Act Jurisdiction Following the Supreme Court Decision in Rapanos v. U.S. and Carabell v. U.S., and their 2003 “Joint Memorandum” which provides clarifying guidance on the Supreme Court’s SWANCC decision.
The Draft Guidance rarely misses an opportunity to expand the scope of CWA jurisdiction as interpreted by the 2008 Rapanos guidance. For example, while the 2008 Rapanos guidance focused only on the CWA 404 regulations at issue in the Rapanos case, the 2010 Draft Guidance applies to decisions concerning “whether a waterbody is subject to any of the programs authorized under the CWA”, and expressly includes CWA sections 402 (NPDES), 311 (oil spill), 303 (water quality standards and TMDLs) and 401 (state water quality certification) programs.
The 2010 Draft Guidance begins with a broad interpretation of the meaning of “traditional navigable waters” and “interstate waters” for purposes of CWA jurisdiction. It says that waters will be considered “traditional navigable waters” if “they are susceptible for being used in the future for commercial navigation, including waterborne recreation . . . . A determination that a water is susceptible to future commercial navigation, including commercial waterborne recreation, should be supported by evidence.” Of course it should! In contrast, the 2008 Raponos guidance mandated that a likelihood of future commercial navigation, including waterborne commercial recreation, “must be clearly documented” and “will not be supported when evidence is insubstantial or speculative.”
The 2008 Rapanos guidance provided useful guidelines for the regulated community to determine what features would not be subject to CWA jurisdiction. For example, the “Summary of Key Points” in the 2008 Rapanos guidance provided that the agencies generally would not assert CWA jurisdiction over “swales or erosional features (e .g., gullies, small washes characterized by low volume, infrequent, or short duration flow)”, or over “ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.”
This reasonable interpretation of features that are outside the scope of CWA jurisdiction under Rapanos is eliminated from the “Summary of Key Points” in the 2010 Draft Guidance. Later text in the 2010 Draft Guidance does retain the concept that such features generally are not subject to CWA jurisdiction: “Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow) are generally not waters of the United States because they are not tributaries or they do not have a significant nexus to downstream traditional navigable waters or interstate waters.” The Guidance emphasizes that “[e]rosional features such as gullies and rills are not part of the tributary system, are not jurisdictional waters, and shall not be assessed as part of the significant nexus determination. Natural and man-made swales are also not tributaries for purposes of this guidance.”
However, the 2010 Draft Guidance “clarifies” that under certain circumstances ditches may be jurisdictional. If a ditch has a bed and bank and an ordinary high water mark, and connects directly or indirectly to a traditional navigable water, it is considered a “tributary” potentially subject to CWA jurisdiction like any other tributary, if: a) it is a natural stream that has been altered (e.g., channelized, straightened or relocated); b) it is excavated in waters of the U.S., including wetlands; c) it has relatively permanent flowing or standing water; or d) the ditch connects two or more jurisdictional waters of the U.S. If a ditch or swale includes areas that meet the regulatory definition of “wetlands”, the ditch or swale must be evaluated to see if it qualifies as wetlands for purposes of CWA coverage.
The 2008 Rapanos guidance stated that the agencies will assert jurisdiction over non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries “typically flow year round or have continuous flow at least seasonally (e.g., typically three months).” The 2010 Draft Guidance deletes the “continuous flow” and “three month” clarifications, and instead asserts that non-navigable tributaries are subject to CWA jurisdiction if “they are relatively permanent, meaning at least seasonal.” The 2010 Draft Guidance explains these changes were made because the “time period constituting ‘seasonal’ will vary across the country. Rather than having distinct, rigid boundaries, stream reaches classified as perennial, intermittent, and ephemeral may more accurately be described as dynamic zones within stream networks.”
Under the 2010 Draft Guidance, more tributaries would be jurisdictional. The Draft Guidance takes the position that “a tributary continues as far as a channel (i.e., bed and bank) is present. A natural or man-made break (e.g., outcrop, underground flow, dam, weir, diversion or similar break) in the presence of a bed and bank or ordinary high water mark [OHWM] does not establish the limit of a tributary in cases where a bed and bank and an OHWM can be identified upstream and downstream of the break.” This position is likely to substantially increase the number of jurisdictional tributaries, especially in the desert southwest, where many washes have miles upon miles where no beds and banks with identifiable OHWMs exist as a result of underground flows, outcrops, and man-made breaks.
The 2010 Draft Guidance indicates that tributaries with an OHWM and identifiable beds and banks will generally be considered jurisdictional if they are “part of a tributary system to a traditional navigable water or interstate water, and therefore can transport pollutants, sediments, flood waters and other materials to a traditional navigable water.” In contrast, the 2008 guidance provided that these were simply factors to evaluate in determining whether a significant nexus exists.
The 2010 Draft Guidance interprets the word “significant” in “significant nexus” to mean “more than speculative or insubstantial.” The Guidance suggests that Justice Kennedy likely meant that “‘significant’ includes having a predictable or observable chemical, physical or biological functional relationship.” It is debatable whether Justice Kennedy intended the word ‘significant’ to have this more expansive meaning.
At this time, the fate of the 2010 Draft Guidance remains uncertain. The Guidance faces strong opposition from various industry groups and Congressional efforts to block its issuance. And it remains to be seen whether and the extent to which the Draft Guidance, if and when formally issued by EPA, will differ from the controversial December 2010 Draft.