US EPA and US Army Corps of Engineers Continue Their Efforts to Clarify Clean Water Act Jurisdiction

Rapanos v. U.S.

547 U.S. 715

The United States Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Corps") jointly submitted a draft rule to clarify the limits of Clean Water Act ("CWA") jurisdiction to the Office of Management and Budget ("OMB"). The EPA also released a supporting technical report from its science advisory board reporting the way streams and wetlands connect to downstream waters. These two initiatives are but the latest in the federal government's spasmodic efforts to regulate wetlands after the 2006 U.S. Supreme Court decision in Rapanos v. U.S. 547 U.S. 715 (Rapanos).

The Clean Water Act ("CWA") establishes the basic structure for regulating discharges of pollutants into navigable waters of the United States. The Corps issues permits for the discharge of dredge or fill material into "navigable waters" of the U.S.

In Rapanos, the Supreme Court interpreted the CWA's jurisdictional expression, "waters of the United States," to include "only those [waters] relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams...oceans, rivers, [and] lakes.'" The Court further held that "channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall 'are not "waters of the United States.'" Specific to wetlands, the Court found that wetlands are not subject to the CWA unless the wetlands have "a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between the two." The Court softened its decision by holding that CWA jurisdiction over otherwise non-jurisdictional wetlands could be established on a case by case basis, if a "significant nexus" exists between the wetland and the chemical, physical and biological integrity of a covered water.

Rapanos, like many watershed Supreme Court rulings, answered some questions but gave rise to many others. The EPA Corps' draft rule, submitted to OMB in September is intended to address some of the resulting confusion over which waters and wetlands are subject to the CWA. How exactly the draft rule will achieve this end is unclear at present because the EPA and Corps have not made their draft available to the public. The EPA's announcement regarding the proposed rule, however, states that the suggested changes do not alter the current regulatory exemptions and exclusions from CWA jurisdiction. The existing exclusions include:

• Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land
• Artificially irrigated areas that would be dry if irrigation stops
• Artificial lakes or ponds used for purposes of stock watering or irrigation
• Areas artificially flooded for rice growing
• Artificial ornamental waters created for primarily aesthetic reasons
• Water-filled depressions created as a result of construction activity
• Pits excavated in uplands for fill, sand or gravel that fill with water

In addition to submitting its draft rule to the OMB, the EPA also released a supporting review and synthesis report from its science advisory board reporting the way streams and wetlands connect to downstream waters. The stated focus of the report is on "small or temporary non-tidal streams, wetlands, and open-waters," and provides "examples of relevant connections [to include the] transport of physical materials such as water or wood, chemical compounds such as nutrients or pesticides, movement of biological organisms such as fish or insects, and processes or interactions that alter material transport, such as nutrient spiraling." (Science Advisory Board's Technical Charge to External Peer Reviewers, p. 1.) This report and the comments provided thereon will purportedly assist the EPA and Corps in clarifying what waters are under CWA jurisdiction. (Id.)

The report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence is available for review at http://yosemite.epa.gov/sab/SABPRODUCT.NSF/81e39f4c09954fcb85256ead006be86e/7724357376745f48852579e60043e88c!OpenDocument.

We will continue to monitor the draft rule as it makes its way through the federal rulemaking process.

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