Publication

McKinley Morganfield, a/k/a the legendary bluesman Muddy Waters, once recorded a song “Mud In Your Ear.”  Much to the chagrin of anyone attempting to work anywhere near waters of the United States, Mr. Morganfield’s song could be the theme song for the recently released EPA and the US Army Corps of Engineers’ revised joint guidance “clarifying” the geographic scope of jurisdiction under Section 404 of the Clean Water Act (“CWA”).  The new guidance replaces similar guidance issued just last year which similarly attempted to clarify the CWA’s jurisdictional reach after the Supreme Court’s 2006 decision in the consolidated cases Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006) (“Rapanos”). 

Unfortunately, the guidance, which draws on more than 18,000 jurisdictional determinations and review of more than 66,000 public comments, does little to clarify CWA jurisdiction.  A quick tip-off to anyone needing to work near a water body that the permitting process is going to be long, hard and complicated is the heavy use in the guidance of terms such as “adjacent wetlands”, “significant nexus”, “relatively permanent non-navigable tributaries of traditional navigable waters” and “certain adjacent and non-navigable tributaries that are not relatively permanent.” 

Perhaps those amorphous terms are all anyone needs to know about the guidance, but if work is to be performed proximate to water bodies, the following description of the current regulatory stance regarding CWA permitting is important to know.   

Background

The types of activities regulated under Section 404 of the CWA have expanded significantly since inception of the CWA and now includes any addition, including any redeposit of dredged material, into “navigable” waters (meaning “waters of the United States, including the territorial seas.”)[1] that is incidental to any activity including mechanized land clearing, ditching, channelization or other excavation.  

Importantly, this revised definition prohibits the incidental fallback of a material during removal activities without a permit, unless the material falls back to substantially the same place as the initial removal.  In essence, it is difficult to avoid the Section 404 permit process for any kind of construction activity within a wetland.

Similarly, there has been constant testing of the limits of the CWA’s jurisdiction.  Permittees felt that the jurisdictional reach of the CWA had reached unsupportable limits (e.g., manmade ditches seemingly unconnected to “navigable” waters) because EPA and the Corps viewed jurisdiction broadly to include almost any body of water.  The tension between the two camps culminated with the infamous Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) decision where the Corps’ interpretation of the CWA’s jurisdictional reach was slightly reigned in by the Court. 

In SWANCC, the Court overturned the Corps’s assertion of CWA jurisdiction over isolated non-navigable bodies of water (i.e., ponds which had formed in pits originally used in a sand and gravel mining operation) solely because they served as a stop for migratory birds.  As a result of the decision in SWANCC, millions of acres of wetlands in the United States no longer fell within the jurisdiction of the Corps and jurisdictional uncertainty continued to abound. 

Into this uncertainty, again stepped the Supreme Court with its decision in Rapanos and the agencies’ subsequent joint guidance.[2]  As demonstrated below, the revised guidance provides precious little clarity, as well as mandating an overly intensive evaluation of CWA jurisdiction, causing significant delay and added costs to permittees and their construction projects.[3] 

The Revised Guidance

The agencies divide CWA jurisdictional waters into three categories: 1) “traditional navigational waters” (“TNWs”) and their adjacent wetlands, 2) relatively permanent non-navigable tributaries of TNWs and wetlands with a continuous surface connection with such tributaries; and 3) certain adjacent wetlands and non-navigable tributaries that are not relatively permanent.  The above categories are listed in descending order of the relative strength of the agencies’ claim of CWA jurisdiction. 

1.      Traditional Navigable Waters and Their Adjacent Wetlands

Sometimes referred to as “(a)(1) Waters”, TNWs are “[a]ll waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.”[4]  EPA and the Corps will categorically continue to assert broad jurisdiction over TNWs.  The agencies will consider a water body susceptible to navigational use based on size, depth and flow velocity and evidence to support such a finding must be clearly documented and not insubstantial and/or speculative.

The agencies will also continue to assert jurisdiction over wetlands adjacent to TNWs.  Pursuant to the agencies’ regulations, adjacent means “bordering, contiguous or neighboring.”  Note that a continuous surface connection to a TNW is not required for a wetland to be considered adjacent.  According to the regulations, wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are “adjacent wetlands.”[5] 

The guidance provides that a wetland is adjacent if it meets one of the following three criteria: 1) it has a an intermittent or perennial unbroken surface or shallow sub-surface connection to a jurisdictional water; 2) it is physically separated from a jurisdictional water by a man-made dike or barrier, or a similar natural barrier; or 3) the wetland is reasonably close to a jurisdictional water supporting a science-based inference that it has an ecological interconnection with a jurisdictional water that is neither speculative or insubstantial.[6]  The agencies give themselves wiggle room by providing that when making “reasonably close” (undefined) determinations, they will not be required to demonstrate an ecological connection.

2.      Relatively Permanent Non-navigable Tributaries of TNWs and Wetlands with a Continuous Surface Connection with Such Tributaries

As defined in the guidance, a non-navigable tributary of a TNW is a water body whose waters flow into a TNW either directly or indirectly by means of other tributaries.  Relatively permanent tributaries are described as having a “flow year- round or have continuous flow at least seasonally (i.e., typically three months).”  In the original guidance, the agencies asserted jurisdiction over the entire reach of a tributary, based on the flow of the tributary at the point it entered a higher order stream. 

This methodology was roundly criticized because characterizing a tributary at its farthest downstream point automatically swept into CWA jurisdiction upstream portions of the tributary that did not possess physical characteristics to merit CWA jurisdiction.  The revised guidance offers a small concession to the critics by providing that when the data suggests that the flow at the downstream point is “not representative of the entire tributary,” (i.e., a tributary is relatively permanent downstream but not relatively permanent upstream), the agencies will use the flow data that best characterizes the entire tributary.  

The agencies will assert jurisdiction over adjacent wetlands to a relatively permanent non-navigable tributary if they have a continuous surface connection to the tributary.  A continuous surface connection exists between a wetland and a relatively permanent non-navigable tributary when the adjacent wetland directly abuts the tributary because there is no separation between the two water bodies such as uplands, a berm, a dike or other similar feature. 

3.      Non-navigable Tributaries That Are Not Relatively Permanent and Certain Adjacent Wetlands

The guidance instructs that the agencies will assert jurisdiction over: 1) non-navigable tributaries that are not relatively permanent; 2) wetlands adjacent to non-navigable tributaries that are not relatively permanent; and 3) wetlands adjacent to, but not directly abutting, a relatively permanent tributary (i.e., separated by uplands, a berm, dike or similar feature), when they have, in Justice Kennedy’s words, a “significant nexus” with a TNW. 

The agencies will examine the flow characteristics and functions of the not relatively permanent tributary in conjunction with the functions performed by the adjacent wetlands to determine if there exists a significant nexus to a TNW.  Although it may be self-evident, it bears mentioning that if there are no adjacent wetlands to the tributary, then the significant nexus analysis will focus on the tributary itself. 

The significant nexus analysis is complicated, highly site specific and data intensive.  The significant nexus analysis is intended to “recognize the ecological relationship between tributaries and their adjacent wetlands, and their closely linked role in protecting the chemical, physical and biological integrity of TNWs.” 

Specifically, the agencies will examine the flows and functions of the not relatively permanent tributary and the adjacent wetlands and their respective roles in protecting the water quality of the downstream TNWs.  This analysis examines whether the wetlands hold floodwaters, intercept sheet flow from uplands and thus release waters to the tributary in a more even and constant manner, trap and hold pollutants from reaching the tributary and TNWs or provide habitat for aquatic species that live in the TNWs. 

The guidance does offer a glimmer of certainty when it states that “swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent or short duration flow)” and “ditches (including roadside ditches) excavated wholly in and draining only uplands and do not carry a relatively permanent flow” are not jurisdictional waters.  However, what one hand gives the other takes away when the guidance cautions that even when not CWA jurisdictional waters “these geographic features … may function as point sources” and “could be subject” to CWA Sections 311 and 402.   

Conclusion

It is clear that except for the categorical jurisdiction for TNWs and their adjacent wetlands, CWA jurisdiction analysis, whether pursuant to a significant nexus analysis or not, is a time intensive exercise with the potential to delay construction projects significantly.  The agencies’ solution to alleviate delay is simple.  Permittees can request a preliminary jurisdictional determination based on an “effective presumption” of CWA jurisdiction over all the wetlands and water bodies at the site.  In other words, to escape the costs of delay, permittees can submit to CWA jurisdiction, whether applicable or not. 

In essence, the agencies are leveraging the lengthy and complicated jurisdictional analysis to assert CWA jurisdiction in a pre-SWANCC manner.  Fractured as it was, this expansion of CWA jurisdiction was not the intent of the Rapanos decision.  Complicating matters even further, the incoming Obama administration may heed the numerous calls to withdraw the guidance, a development sure to engender even more delay.  Despite the muddy waters, one thing is clear, CWA permittees need to be familiar with the revised guidance well in advance of any project planned near a water body and plan accordingly.

---

[1] 33. U.S.C. Sec. 1362(7).  See also 33. C.F.R. Sec. 328.3(a) and 40 C.F.R. Sec. 230.3(s). 

[2] Deciphering the Rapanos decision is a perfect jurisprudential case study for law students.  In a sharply divided opinion, four justices, in a plurality opinion penned by Justice Scalia, decided on one jurisdictional test, Justice Kennedy in a separate concurring opinion presented a different standard for evaluating CWA jurisdiction (“significant nexus”), and four justices in a dissenting opinion concluded that the agencies’ jurisdictional interpretation was a reasonable interpretation of the CWA.  When a majority opinion is not reached, the controlling law of the case may be derived from the decisions of five or more justices.  The revised guidance utilizes Justice Kennedy’s significant nexus standard for determining CWA jurisdiction. 

[3] While the revised guidance only focuses on Section 404 of the CWA, note that other important Sections of the CWA share the same definition of “waters of the United States” and thus raise similar jurisdictional issues.  Specifically, Sections 311 and 402 of the CWA regulate areas where jurisdiction is hotly contested.  Section 402 controls direct discharges into navigable waters. Direct discharges or "point source" discharges are from sources such as pipes and sewers.  Pursuant to Section 402, NPDES permits (either general or individual), issued by either EPA or an authorized state/tribe, contain industry-specific, technology-based and/or water-quality-based limits, and establish pollutant monitoring and reporting requirements.  Section 311 addresses pollution from oil and hazardous substance releases, providing EPA and the U.S. Coast Guard with the authority to establish a program for preventing, preparing for, and responding to oil spills that occur in navigable waters of the United States.  EPA is considering whether to provide additional guidance on Sections 311 and 402 and other CWA provisions that may be affected by the Rapanos decision. 

[4] 33 C.F.R. Sec. 328.3(a)(1). 

[5] 33 C.F.R. Sec. 328.3(c). 

[6] The agencies consider that a species (amphibians or anadramous fish) moving between water bodies supports an ecological connection, while a migratory species traveling between the two would not.