After the Supreme Court issued its decision in Rapanos, a lack of clarity persists as to how to determine whether a waterway or wetland is federally protected under the Clean Water Act.  This of course pretty critical in deciding which types of permits you may need to impact a stream or wetland.

On December 2nd, the Army Corps of Engineers and EPA released a new guidance document that builds upon earlier guidance.  The guidance provides more insight into what factors will be used to determine federal jurisdiction. 

Rapanos contains two tests for determining federal jurisdiction.  The plurality test and the significant nexus test created by Justice Kennedy.  A key debate since the Supreme Court decision in the lower courts has been whether one or both tests should be used to determine jurisdiction.  The new federal guidance makes clear the EPA/Corps position is that both tests should be applied.

Here is recap of the two tests that emerged from Rapanos:

  1. Significant Nexus Test- (Justice Kennedy) Federal Clean Water Act Jurisdiction extends to all waterways that have a "significant nexus" to a navigable water. A "significant nexus" occurs "if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable
  2. Plurality Test- (Just Scalia) The test developed by the plurality has a more narrow focus than the Kennedy test.  Under the test, federal jurisdiction extends to only "relatively permanent, standing or continuously flowing bodies of water"

The new federal guidance creates three groups of waterways and wetlands- those that are categorically federal waterways, those where a fact specific analysis will be performed and those that are not federally protected.  A quick summary of the key factors for each category is set forth below:

 Categorical Federal Waters-  The following waters will be considered federal waters:

  • Traditional Navigable Waters- which include waters currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce
  • Wetlands adjacent to traditional navigable waters– (adjacent = 1) unbroken surface or subsurface connection; 2)  only separated by man-made barriers like a dike; or 3) science supports conclusion ecologically connected)
  • Non-navigable tributaries of traditional navigable waters that are relatively permanent where they have flow year-round or seasonal flow (typically three months)
  • Wetlands adjacent to these permanent non-navigable tributaries

Fact Specific "Significant Nexus" Test-  The Corps will have to engage in a fact specific analysis of the ecological factors in deciding whether to extend federal jurisdiction to non-adjacent or non permanent waterways justifies.  The fact specific analysis will include:

  • Examination of the flow characteristics and functions of  the tributary and any adjacent wetlands to determine whether such tributary has a significant effect on the chemical, physical and biological integrity of downstream traditional navigable waters.
  • Principal considerations when evaluating significant nexus include the volume,
    duration, and frequency of the flow of water in the tributary and the proximity of the
    tributary to a traditional navigable water
  • In examining flow, physical indicators of flow may include the presence and characteristics of a reliable ordinary high water mark (OHWM) with a channel defined by bed and banks. Other physical characteristics include shelving, wracking, water staining, sediment sorting, and scour.
  • Extent to which the tributary and adjacent wetlands have the capacity to carry pollutants (e.g., petroleum wastes, toxic wastes, sediment) or flood waters to traditional navigable waters, or to reduce the amount of pollutants or flood waters that would otherwise enter traditional navigable waters
  • Evaluate ecological functions such as the capacity to transfer nutrients and organic carbon vital to support downstream foodwebs (e.g., macroinvertebrates present in headwater streams convert carbon in leaf litter making it available to species downstream), habitat services such as providing spawning areas for recreationally or commercially important species in downstream waters

Non-jurisdictional waterways or wetlands-  The Corps will not extend federal Clean Water Act jurisdiction to the following waters and wetlands:

  • Swales or erosional features (e .g., gullies, small washes characterized by low volume, infrequent, or short duration flow)
  • Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water

COMMENTARY:  While the guidance provide additional insight, legislative clarity is needed.  It should not take a 13 page memo that includes vague standards to determine whether a waterway or wetland is within federal jurisdiction.  Such a complex test is prone to inconsistent application.  We need a more straightforward test so its clear to everyone.