During the past decade, the U.S. Supreme Court handed down two decisions that greatly reduced the extent of waters protected by the Clean Water Act (CWA). These cases upset the clearly articulated regulatory definition of “waters of the United States” that had been consistently applied and widely accepted as valid for many years. Not only did the decisions threaten millions of acres of wetlands and thousands of headwaters with destruction and unregulated pollutant discharges, but the most significant of the two was issued by a badly fractured Court, producing a great deal of confusion over which waters are regulated and which ones are not.
In the SWANCC case (2001), the Supreme Court held that CWA jurisdiction could not be based on the presence of migratory birds at isolated, non-navigable, intrastate ponds. In the second case, Rapanos (2006), the Court addressed the CWA’s application to wetlands located adjacent to non-navigable tributaries. Five separate opinions were issued, none of which received majority support. The plurality opinion, written by Justice Scalia, stated that the concept of navigability was still important in defining and limiting the scope of jurisdictional waters under the CWA and that waters refers to “flowing or moving masses.” Therefore, the plurality declared that the CWA can, in some instances, apply to more than traditionally navigable waters and their adjacent wetlands. Jurisdiction, as a result, also extends to “relatively permanent” streams and lakes and their adjacent wetlands as long as the wetland has a “continuous surface connection” to the stream or lake.
Justice Kennedy concurred using different reasoning. He stated that “waters of the United States” included wetlands that have a “significant nexus” to navigable waters. Such a nexus would exist if the wetland, viewed alone or in combination with “similarly situated” waters in the region, significantly affects the chemical, physical or biological integrity of a navigable water. The four dissenting justices would have upheld the existing regulatory definition and, furthermore, indicated that they would uphold future assertions of jurisdiction under either the plurality approach or Justice Kennedy’s concurrence.
The EPA and the U.S. Army Corps of Engineers (the Corps) issued a guidance document in 2008 trying to implement these two decisions. It provided some clarity, for instance setting forth the agencies’ position that jurisdiction would exist under the CWA if either Justice Kennedy’s or the plurality’s approach were satisfied. But it didn’t make full use of the CWA’s statutory authority with regard, for example, to interstate waters. It also limited “similarly situated” waters in Justice Kennedy’s analysis to waters along a particular tributary rather than in a particular watershed – overly constricting the appropriate scientific inquiry. Perhaps, most importantly, the 2008 guidance document lacked adequate precision in setting forth how a decision regarding a “significant nexus” would be reached. As a result, jurisdictional decisions have not necessarily been made in a uniform manner across the nation. All too often, as well, these decisions have consumed inordinate amounts of agency resources, leading to inevitable delays in permitting decisions.
In order to address these problems and provide additional clarity, the two agencies issued a new draft guidance document on Wednesday, and will take comments on the document before publishing a final version. The finalized guidance document will not be a rule under the Administrative Procedure Act and therefore will not have the force of law. The agencies, however, did indicate that they expect to undertake a rulemaking at some point in the future in order to make appropriate revisions to the existing regulatory definition of “waters of the United States.”
The agencies correctly anticipate that the extent of jurisdictional waters “will increase” under the understandings set forth in the draft guidance document. It will also, if finalized, increase the uniformity and predictability of jurisdictional decisions and help ensure that most waters that are, indeed, serving significant aquatic functions – sediment trapping, nutrient recycling, pollutant trapping and uptake, retention and mitigation of flood waters, provision of habitat, and runoff storage – come within the protection of the CWA.
Although the draft guidance has drawn the ire of some business interests, it would actually help business in many ways. If finalized, it would create more certainty and predictability in the regulatory process, a goal that most businesses espouse and need in order to make rational investment decisions. It would also help ensure a level playing field by reducing differential jurisdictional approaches that may have been taken by agency field staff around the country. In addition, and most importantly, it would help all Americans – including American business – by more adequately protecting wetlands that are necessary to mitigate flood damage along our rivers, helping maintain adequate river flows in dry times, and providing healthy and productive aquatic ecosystems. Such an approach would deliver tangible benefits to many industries and businesses located along our waterways by offering greater flood protection, more security of water supply, and, in some instances, by reducing the likelihood of more stringent wastewater treatment requirements in the future. It represents, in other words, a win-win proposition for the nation, including its business interests.
The draft guidance document would achieve this result in a number of ways:
First, it sets forth the agencies’ belief, as stated in the earlier guidance document, that CWA jurisdiction may be asserted over waters that satisfy either the plurality approach in Rapanos or Justice Kennedy’s concurrence.
Second, it clarifies the agencies’ understanding of what is meant by traditional navigable waters. The term includes, for example, all waters that are used, have been used, or are susceptible to use for commercial navigation, including commercial waterborne recreation (such as boat rentals and guided fishing trips).
Third, it makes clear that the agencies will assert jurisdiction over all interstate waters, including interstate wetlands.
Fourth, it indicates that the agencies will evaluate the existence of a “significant nexus” of a non-navigable tributary, wetlands adjacent to such tributaries, and other waters to traditional navigable waters by considering all “similarly situated” waters within the same watershed. Examples of important hydrological connections would include the transportation of pollutants, water retention, movement of aquatic organisms, movement and retention of flood waters, sediment trapping, nutrient transfer, and spawning. Site specific information and scientifically credible literature could be relied upon in making these determinations. And, in a significant improvement saving both time and resources, the agencies indicate that once a jurisdictional status for a particular water within a watershed has been made, agency field staff could apply the significant nexus analysis for that water to subsequent jurisdictional determinations involving the same type of water in the same watershed.
Fifth, it indicates that non-navigable tributaries are “relatively permanent” waters under the plurality approach when those tributaries have predictable flows during wet seasons in most years and are connected, directly or through other tributaries, to a traditionally navigable water. This determination regarding seasonal flow would involve, according to the proposed guidance document, an exploration of the length and timing of seasonal flows in the particular ecoregion where the water is located, thus discarding reference to a typical three month period, which is found in the currently applicable guidance.
Finally, it indicates that the agencies will make case-by-case jurisdictional determinations for non-wetland waters that are in close physical proximity (adjacent, in other words) to traditionally navigable waters, interstate waters, or their jurisdictional tributaries. These lakes and ponds will be evaluated, along with all physically proximate other waters in the same watershed, using the “significant nexus” analysis.
Unfortunately, the proposal did not set forth specific guidance on other waters (non-wetlands) that are not physically proximate to jurisdictional waters. Although the agencies indicated that Justice Kennedy’s significant nexus analysis can be used in making jurisdictional determinations for these other waters, they stated that the significant nexus analysis for waters that are geographically separated from jurisdictional waters “may be more challenging.” Therefore, the proposal directs field staff to conduct a significant nexus analysis for these waters and then to refer these questions to their respective headquarters for approval before either asserting or denying jurisdiction.
So, while the proposed guidance document could have been stronger in some respects, it represents a substantial improvement over the status quo and, if finalized, would go far to improve the health and well-being of this vital national resource. The efforts of EPA and the Corps should be applauded.
Ultimately, of course, the best fix for the CWA would be for Congress to act. Only Congress can overturn the impact of these two decisions by deleting the term “navigable” from the CWA and thus making clear that the purpose of the CWA is to restore and protect the chemical, biological, and physical integrity of all of the nation’s waters.