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On May 2, 2011, EPA and the Army Corps published draft guidance (“Guidance”) in the Federal Register.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.