As used in rulemaking, the phrase “waters of the United States” most often refers to waters subject to CWA Section 404 dredge and fill permitting as implemented by the Corps and subject to EPA approval. But in the draft guidance, the agencies make it clear that the phrase extends to other major programs administered under the CWA, including water quality standards and implementation (Section 303), oil and hazardous substance liability (Section 311), and National Pollutant Discharge Elimination System (NPDES) permitting (Section 402).
The general intent of the draft is to direct CWA regulatory and permitting decisions in light of two opinions issued by the U.S Supreme Court during the G.W. Bush administration–Solid Waste Agency of Northern Cook Country v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. the United States (Rapanos). Based on their interpretation of the court actions, the Bush EPA and Corps published a joint memorandum and a guidance document that removed certain waters from the list of waters that permitting authorities consider for federal protection.
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Lacking congressional direction on an issue that sorely needs it, the Obama administration had to choose between either living with the Bush-era guidance or replacing it with guidance of its own. The latter course was chosen, and the draft guidance was released in May 2011. After public comment was received, the EPA and the Corps revised the draft, which they say is now being reviewed by the Office of Management and Budget (OMB). That version has circulated unofficially on the Internet, but at present, the May 2011 draft is the only version the agencies have officially released for public review. In both versions, the agencies state unequivocally that they intend to follow the finalization of the guidance with rulemaking to further clarify the extent of CWA jurisdiction, “consistent with the Court’s decisions.” Absent a final rule, the agencies state that the nonbinding guidance is intended to clarify their existing understanding of the definition of U.S. waters, reduce confusion, and increase certainty.
An EPA/Corps economic analysis completed in conjunction with the draft stated that 17 percent of waters found nonjurisdictional under the Bush-era documents would become jurisdictional under the draft guidance. The EPA/Corps also stated in the draft: “The agencies expect, based on relevant science and recent field experience, that under the understandings stated in this draft guidance, the extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent of waters over which jurisdiction has been asserted under existing guidance, though certainly not to the full extent that it was typically asserted prior to the Supreme Court decisions in SWANCC and Rapanos.” That statement was withdrawn from the revised guidance submitted to the OMB. However, the revision makes only minor changes to the descriptions of aquatic areas not subject to CWA jurisdiction, and the overall parameters of jurisdiction provided in the draft are unchanged in the revision.
The draft guidance received negative reviews from business, particularly the construction industry, which is heavily impacted by Section 404 permitting. In sensitive environmental areas, Section 404 permitting can hold up a project for many months and even years. Industry has complained that the changes contemplated by the guidance are so sweeping that only Congress can make them. The agencies have stated that the list of areas excluded from regulation is unchanged from previous guidance. But the manner in which critical terms are interpreted may in fact narrow the exclusions as they were previously applied.
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Two topics are addressed in the Supreme Court opinions–wet areas that are not tributaries or open waters and that do not meet the regulatory definition of “wetlands” and waters that lack a significant nexus when one is required for jurisdiction.
• In SWANCC, the Court addressed the question of CWA jurisdiction over isolated, non-navigable, intrastate ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds.
• In Rapanos, the Court addressed CWA protections for wetlands adjacent to non-navigable tributaries, and issued five opinions with no single opinion commanding a majority of the court. Rapanos is most important for the concept of significant nexus elucidated by Justice Kennedy. Specifically, if a wetland is connected to a traditional navigable water (that is undisputedly within CWA jurisdiction) by a significant nexus, the wetland is within CWA jurisdiction. According to Kennedy, a significant nexus exists “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” In the draft guidance, the EPA makes extensive use of the similarly situated phrase to lengthen the jurisdictional reach under Rapanos. The case also provides a plurality decision written by Justice Scalia, who was joined by Justices Roberts, Thomas, and Alito.
See tomorrow’s Advisor for the key points made in the draft guidance in three critical areas–significant nexus, tributaries, and adjacent wetlands.