Last June, the Supreme Court issued its much anticipated decision in Rapanos v. United States, 126 S. Ct. 2208 (2006) (and its companion case Carabell v. United States Army Corps of Engineers). Both cases involved challenges to the U.S. Army Corps of Engineers assertion of jurisdiction over wetlands that were adjacent to non–navigable tributaries of traditional navigable waters. Unfortunately, the Court’s decision did not clear the muddy waters of wetland jurisdiction.1 The Court was split 4–1–4 and the justices issued five separate opinions (with no one opinion representing a majority) leading to more uncertainty among the agencies and the public over the scope of the Clean Water Act’s wetland jurisdiction.
On June 5, 2007, the U.S. Environmental Protection Agency and the Army Corps of Engineers issued the Clean Water Act Jurisdiction Guidance (Guidance) in an attempt to promote consistent jurisdictional determinations and permitting actions based upon application of the Rapanos opinion. The Guidance (available at www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf) seeks to articulate those waters that the agency will categorically assert jurisdiction over and those that will be assessed on a case-by-case basis. While the guidance is effective immediately, the agencies are inviting public comments until December 5, 2007.
Based upon the Guidance, the agencies will assert jurisdiction over the following waters without making a “significant nexus” determination:
The agencies will assert jurisdiction over the following waters after making a jurisdictional determination on a case-by-case analysis of whether there is a “significant nexus” between the water and a traditional navigable water:
The agencies’ significant nexus analysis will follow Justice Kennedy’s significant nexus standard articulated in his concurring opinion in Rapanos. “Wetlands possess the requisite nexus, and thus come within the statutory phrase ‘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.’” Rapanos, 126 S. Ct. at 2248.
The agencies generally will not assert jurisdiction over the following waters previously considered to be wetlands:
Although the Guidance will serve as an aid in applying the Rapanos decision, there likely will continue to be significant debate and litigation over the interpretation of a “significant nexus” and its application to each particular situation.
1 Section 404 of the Clean Water Act prohibits the discharge of pollutants or fill materials into navigable waters, defined as “waters of the United States.” See 33 U.S.C. §§ 1311–1344. In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), the Supreme Court concluded that federal jurisdiction extends to waters and wetlands “adjacent to” navigable waters. Following Bayview, the Corps promulgated wetlands regulations and included within the definition of “waters of the United States” isolated wetlands that could be visited by migratory birds. 51 Fed. Reg. 41206, 41217 (1986). In 2001, after the migratory bird rule was upheld by several courts, the Supreme Court held that the Corps had exceeded its authority in asserting Clean Water Act jurisdiction over isolated, intrastate, non-navigable waters based upon the migratory bird rule. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001).