Guidance on Post-Rapanos Clean Water Act Jurisdiction Issued

By Justin D. Gericke

In response to last year's U.S. Supreme Court decision in Rapanos v. United States,¹ the Army Corps of Engineers (the "Corps") and the U.S. Environmental Protection Agency (the "EPA") recently issued long-awaited guidance addressing federal jurisdiction over waters of the United States under the Clean Water Act (the "CWA").² The Rapanos decision resulted in wide-spread uncertainty over the extent of federal jurisdiction due to a confusing plurality opinion.³ A joint memorandum issued by the agencies on June 5, 2007, affirms federal jurisdiction over traditional navigable waters and their adjacent wetlands and outlines the standards for jurisdictional determinations over non-navigable tributaries and their adjacent wetlands.

Four of five concurring Justices in the Rapanos case would define "waters of the United States" as including only those relatively permanent, standing, or continuously flowing bodies of water forming geographic features ordinarily referred to as streams, oceans, rivers, and lakes. Not included in their definition would be channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. Those Justices would also conclude that the presence of a hydrologic connection to surface water is not sufficient to bring a wetland within federal jurisdiction. Rather, the plurality opinion would limit federal jurisdiction to only those wetlands with a continuous surface connection to such permanent waters.

The fifth concurring justice, Justice Kennedy, did not go so far in limiting the reach of federal agencies. Justice Kennedy outlined a "significant nexus" standard that focuses on whether the wetlands at issue "significantly affect the chemical, physical, and biological integrity of the covered waters more readily understood as 'navigable.'"⁴ The conflict between these two tests resulted in no clear majority. Thus, the lower courts, EPA, and the Corps were left with little guidance.

In the joint memorandum issued on June 5, 2007, the Corps and the EPA addressed the Rapanos decision and provided guidance to EPA regions and Corps districts regarding its implementation. Citing the Court's decision in Marks v. United States,⁵ the joint memorandum concluded that "when there is no majority opinion..., controlling legal principles may be derived from those principles espoused by five or more justices."⁶ Thus, the Corps and the EPA agreed with Justice Stevens' dissenting opinion in Rapanos and concluded that "regulatory jurisdiction under the CWA exists over a water body if either the plurality's or Justice Kennedy's standard is satisfied."⁷

The result is that the joint memorandum declares the Corps and the EPA will continue to assert jurisdiction over traditionally navigable waters and those wetlands that are adjacent to traditional navigable waters.⁸ Likewise, the agencies will assert jurisdiction over non-navigable tributaries of traditional navigable waters that are relatively permanent (typically flowing year-round or waters that have a continuous flow at least seasonally), and those wetlands that abut, or have a continuous surface connection, to such tributaries.⁹ The joint memorandum concludes that these waters meet the plurality test and that no legal obligation to make a significant nexus determination exists.

For non-navigable tributaries that are not relatively permanent, wetlands adjacent to such tributaries, and wetlands adjacent to but not directly abutting a relatively permanent non-navigable tributary, the Corps and the EPA will assert jurisdiction only when a significant nexus to a traditional navigable water exists.¹⁰ In determining whether a significant nexus exists, the agencies will assess the flow characteristics and functions of the tributary itself, together with the functions performed by any wetlands adjacent to that tributary, to determine whether they significantly affect the chemical, physical, and biological integrity of downstream traditional navigable waters.¹¹ The joint memorandum provides additional guidance on what considerations are to be made in making a significant nexus determination. Waters that typically do not meet the significant nexus standard include swales or erosional features (such as gullies and small washes) and ditches excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.

The joint memorandum is intended to implement the Court's decision in Rapanos and is not intended to expand or reduce the reach of federal jurisdiction under the CWA. While the Corps and the EPA will continue to assert jurisdiction over traditional navigable waters and their adjacent wetlands in much the same manner as before Rapanos, implementation of the significant nexus standard for determining federal jurisdiction over non-navigable tributaries and their adjacent wetlands is likely to spark debate over case-by-case jurisdictional determinations.

Published June 2007

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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