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EPA, Corps Issue Revised Wetlands Guidance

Beveridge & Diamond, P.C. - Client Alert, December 12, 2008

On December 2, EPA and the U.S. Army Corps of Engineers issued revised joint guidance for making jurisdictional determinations (“JDs”) for wetlands and waters under Section 404 of the Clean Water Act (“CWA”).  The revision comes just 18 months after the agencies released their original version of the guidance to address the Supreme Court’s splintered decision in Rapanos v. United States.  While the new guidance is intended to correct problems that frequently arose under the original, it likely will not accomplish this goal.  See CWA Jurisdiction Following Rapanos (Dec. 2, 2008).

Rapanos presented the Supreme Court with an opportunity to define the scope of CWA jurisdiction over wetlands and non-navigable waters.  Rather than settling on a single standard for determining CWA jurisdiction, however, the sharply-divided Court proposed two vastly different tests.  The Scalia test holds that the CWA reaches only “relatively permanent, standing or continuously flowing” waters and wetlands with “a continuous surface connection” to those waters.  The Kennedy test grounds jurisdiction on the presence of a “significant nexus” between wetlands and navigable waters.  Faced with these competing standards, permittees have wrestled with basic questions over obtaining CWA permits for discharges to remote wetlands and streams.

In hopes of alleviating the growing confusion from Rapanos, last year EPA and the Army Corps issued joint guidance for interpreting the opinion when making jurisdictional determinations under the CWA.  But the guidance only muddied the water by endorsing both of the Rapanos tests as available avenues for establishing CWA jurisdiction. (For a detailed analysis of the 2007 Joint Guidance, please see http://www.bdlaw.com/news-183.html).  The time it took the agencies to make JDs slowed dramatically, and permit applications began piling up.  Much of this delay stemmed from evaluating remote wetlands and impermanent streams individually to identify a “significant nexus” with traditional navigable waters under the Kennedy test.  This complicated the JD process by requiring the agencies to consider a number of hydrological and ecological factors – such as flow characteristics, context (location, watershed size), and function (nutrient transport) – to determine whether a feature affects the chemical, physical, and biological integrity of a traditional navigable water. 

Faced with the growing costs and delays of obtaining Section 404 permits, landowners pressured EPA and the Corps to replace the guidance through formal rulemaking to provide uniform, enforceable standards developed with public input.  The agencies balked at the idea of new regulations.  Instead, they issued revised joint guidance, ostensibly to address the permittees’ concerns by incorporating lessons learned from applying the original guidance in the field. 

The revised guidance makes three changes to the original version; otherwise the two are virtually identical.  First, the agencies clarified their view of the term “traditional navigable waters” (“TNWs”) by listing examples of features they consider to qualify as such.  According to the guidance, TNWs include waters that are jurisdictional under the Rivers and Harbors Act, currently or historically used for commercial navigation or commercial recreation, or are susceptible to future use for commercial navigation or commercial recreation.  The agencies will consider several factors to evaluate a feature’s susceptibility for this use such as physical characteristics (size, depth, flow velocity), and evidence supporting this determination must be “clearly documented,” not insubstantial or speculative.  Although EPA and the Corps have explained that they view TNWs rather broadly, several environmental groups already are criticizing this revision for focusing on commercial navigation, which they say narrows CWA jurisdiction.  Conversely, many permittees support the change as a reasonable clarification.

Second, the agencies elaborated on what features the term “adjacent wetlands” includes.  The guidance specifies that a wetland is adjacent if it meets one of three criteria:  1) it has an intermittent or perennial “unbroken surface or shallow sub-surface connection to jurisdictional waters”; 2) it is “physically separated from jurisdictional waters by man-made dikes or barriers” or similar natural barriers; or 3) its “proximity to a jurisdictional water is reasonably close, supporting the science-based inference that [it has] an ecological interconnection with jurisdictional waters” that is neither speculative nor insubstantial.  For this final criterion, the agencies explain that species (amphibians or anadramous fish) moving between a wetland and jurisdictional water would support an implied ecological interconnection, while migratory species traveling between the two would not.  When making “reasonably close” determinations, however, the agencies say it is unnecessary to demonstrate the claimed ecological interconnection in each case. 

Finally, the new guidance refines the concept of the “relevant reach” of relatively permanent waters considered to be jurisdictional.  Under the original guidance, the agencies interpreted a tributary to include the entire reach of the stream that is of the same order.  They then would determine jurisdiction by examining the flow of each stream reach at the point it entered a higher order stream.  Permittees objected to this policy because, by assessing a tributary at its farthest downstream point, the agencies could ignore upstream characteristics of a reach that would otherwise sever CWA jurisdiction.  The agencies agreed and revised the policy accordingly.  The new guidance specifies that where “data indicates the flow regime at the downstream limit is not representative of the entire tributary,” such as when a tributary is “relatively permanent at its downstream limit but not for the majority of its length,” the agencies should use the flow regime best characterizing the entire tributary.

More important than the policies the agencies changed, however, are the ones they did not.  A significant portion of the 66,000 public comments submitted on the original guidance focused on the complexity and data-intensive evaluation of the Kennedy test’s “significant nexus” determination.  Yet the agencies chose not to address these concerns in their revisions.  They explained that the original guidance contemplated these issues, striking “a careful balance” when interpreting Rapanos, and therefore they “decided to maintain the policy choices made.”  Instead, EPA and the Corps referred the commenters to their June 2008 Regulatory Guidance Letter 08-02, which allows parties to request a preliminary JD based on an “effective presumption of CWA/RHA jurisdiction over all of the wetlands and other water bodies at the site.”  Nevertheless, this offers little comfort to permittees, who now are in the unenviable position of internalizing the costs of delay for a “significant nexus” determination or surrendering arguably non-jurisdictional land to agency regulation for the sake of expediency. 

While few stakeholders are satisfied with the new guidance, their displeasure may have little time to take hold.  Environmental groups, Democratic lawmakers, and key players in President-elect Obama’s transition team already are pressuring the next administration to withdraw the agencies’ guidance upon taking control in January.  Should this happen, EPA and the Corps will be back at square one, and permittees will face additional delays when applying for Section 404 permits.     

To discuss these issues further, please contact Fred Wagner (fwagner@bdlaw.com), Gus Bauman (gbauman@bdlaw.com), or Parker Moore (pmoore@bdlaw.com).

For a printable PDF of this article, please click here.

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