The U.S. Supreme Court issued two landmark decisions, Rapanos and SWANCC, which interpret the extent of federal jurisdiction under the Clean Water Act. Since these decisions were issued the Army Corps of Engineers as well as Courts have had difficulty applying the tests for determining federal jurisdiction in a consistent and coherent manner.
The Army Corps of Engineers, in its 2008 Rapanos Guidance, set forth its methods for applying the Supreme Court tests for determining federal jurisdiction. The prior written guidance left open key issues such as:
- Which of the two tests (Kennedy or Scalia) should be utilized- see discussion below
- Since the statutory language at issue, "waters of the United States," appears in other sections of the Clean Water Act how do the Supreme Court tests apply to regulatory requirements not directly addressed by the Supreme Court Decision.
The new 2010 Draft Rapanos Guidance (click link for a copy) attempts to address these issues as well as others.
Perhaps most importantly, the draft guidance announces that its application will greatly expand the number of waters falling within federal jurisdiction- "the Agencies expect that the numbers of waters found to be subject to CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.” The Agencies criticize the 2008 Rapanos guidance as interpreting Justice Kennedy’s test too narrowly.
Recap of Supreme Court Tests
The Rapanos decision 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. Here is recap of the two tests that emerged from Rapanos:
- 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
- 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"
New 2010 Draft Rapanos Guidance
EPA and the Army Corp’s 2010 Rapanos guidance basically states the agencies will apply Justice Kennedy test exclusively, the more expansive of the two tests. Also, as discussed above, the guidance contains a clear message that the Justice Kennedy test will be applied by the agencies in a more expansive manner than under the 2008 guidance.
The new guidance also applies to more programs under the Clean Water Act (CWA) The 2008 Rapanos guidance focused only on the CWA 404 regulations governing placement of fill in wetlands and streams. The 2010 Draft Guidance is far more expansive, stating it is meant to apply to “whether a water body is subject to any of the programs authorized under the CWA." Such CWA programs include sections 402 (NPDES), 311 (oil spill), 303 (water quality standards and TMDLs) and 401 (state water quality certification) programs.
Status of Written Guidance
The draft 2010 Guidance was sent to the Office of Management and Budget (OMB) for review. OMB has until March 20, 2011 to conclude its review (90 days from the date it was submitted). EPA and the Army Corps have also said they will provide a limited opportunity for comment once the draft clears OMB review.
It goes without saying that there is concern with the new guidance. Industry has already stated it believes it is overly expansive and also incorporates language into Justice Kennedy’s test that the Justice never intended.
Based on the federal agencies attempt to greatly expand federal jurisdiction through release of the guidance, it will almost certainly be challenged.