On April 27th, EPA and the Corps issued new draft guidance for determining whether there is federal Clean Water Act jurisdiction over various streams, wetlands, lakes and ponds.  There is a 60 day comment period before the guidance is finalized and effective.  Previously issued federal agency guidance technically remains in effect, but the agencies appear to be delaying Jurisdictional Determinations until the new guidance is in effect.

Anyone with property containing streams, ponds or wetlands must carefully review the new draft guidance, consider submitting public comments and reassess any prior development strategies that relied upon past guidance and practice for determining Clean Water Act jurisdiction.

The agencies claim that the draft guidance is founded on the legal framework set forth in the SWANCC (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 121 S. Ct. 675, 148 L.Ed.2d 576 (2001)) and Rapanos (Rapanos v. U.S., 547 U.S. 715, 126 S. Ct. 2208, 165 L.Ed.2d 159 (2006)) Supreme Court decisions.  SWANCC prohibited the assertion of federal jurisdiction over isolated ponds based upon the mere presence of migratory birds.  This led to most isolated lakes, ponds and wetlands in the Country being regulated only by those states, such as Washington, that asserted authority to control the filling or discharge of pollutants into these areas.  Justice Scalia’s 4-vote plurality decision in Rapanos recognized federal jurisdiction only over traditional navigable waters, relatively permanent waters, including seasonal streams, and wetlands that directly abutted and had a direct hydrologic connection to these streams.  Under Justice Kennedy’s concurring opinion, federal jurisdiction could be asserted for all waters bodies and wetlands that had a “significant nexus” to traditional navigable waters.  Throughout most of the federal circuits, either Scalia’s “permanent waters” test or Kennedy’s “significant nexus” test could be used to assert jurisdiction.  However, confusion reigned on how permanent was a “relatively permanent” stream and what evidence was needed to establish “significant nexus.” 

The new draft guidance attempts to clarify these concepts, but because the legal framework of Rapanos is already so convoluted, the guidance necessary fails in this regard.  EPA and the Corps clearly state their intent that the new guidance will expand their role in regulating streams, wetlands, and isolated waters.  On paper, the guidance succeeds in this objective, as EPA and the Corps have pushed the envelope as far as they can to put as many waters as possible under federal control.  Whether this expanded authority will last the certain court challenges, without supportive legislation or, at least, formal rulemaking, is doubtful.

The guidance makes a big push to assert jurisdiction over small headwater tributaries, which in many parts of the country have been excluded from federal control after Rapanos.  The guidance stretches the definition of “adjacency” so these federal agencies can control many water bodies and wetlands that were previously called “isolated” after SWANCC.  EPA and the Corps also claim jurisdiction over “isolated” wetlands and water bodies that are “physically proximate” to other streams and waters and have a “significant nexus” to downstream traditional navigable waters.   While recognizing that migratory birds that fly to an isolated pond may not give them regulatory authority, the agencies assert “adjacency” jurisdiction where ducks or turtles may move between a wetland and a jurisdictional stream for feeding, refuse or other life functions.  The guidance even asserts jurisdiction over isolated waters not geographically close other waters, but only with Headquarter review and concurrence.