Ever since Rapanos, EPA has struggled to consistently apply the "continuous surface connection" and "significant nexus test" which both emerged from the Supreme Court decision. The two tests are to be used to determine whether wetlands fall within federal jurisdiction.
To combat these inconsistencies, the Army Corps (ACOE) has adopted guidance documents to help its staff apply the tests in the field. The ACOE’s first Post-Rapanos guidance document was issued in 2008. The U.S. EPA and ACOE worked together to draft the second Post-Rapanos guidance document in June 2011. EPA’s webpage still identifies the 2011 guidance as "draft."
Federal Courts Limit ACOE and EPA Use of Guidance
National Mining Association v. Lisa Jackson
While EPA and the ACOE continue to try and use guidance to clarify their regulations, the courts have severely limited application of guidance in wetland permit reviews. In the latest decision, National Mining Association v. Lisa Jackson (Oct. 6, 2011), the U.S. District Court for the District of Columbia struck down policies and procedures adopted by U.S. EPA and the Army Corps of Engineers (Corps) regarding dredge and fill permits under the Clean Water Act.
The guidance involved "mountaintop removal mining," where rock and soil overburden is moved from atop coal seams and placed drainage channels. In 2009 the EPA, Corps, and the U.S. Department of Interior entered into a memorandum which outlined when EPA would review Section 404 permits that involved surface coal mining and water quality impacts.
EPA argued that the memo clarified the procedural process for reviewing Section 404 permits. EPA says it had broad discretion to establish procedures in how to implement statutes.
The Court disagreed. It said that the memo had the legal impact of a rule because it imposed unequivocal requirements. Also, the Court said the Clean Water Act limits EPA’s role to select functions in the Section 404 permit review process, such as issuing a veto of a permit if EPA determines it will have an "unacceptable adverse effect." The Court said the memo tried to expand EPA permit review role beyond that enumerated in the CWA. Therefore, the Court said the memo was actually a rule in disguise.
Precon Development Corp., Inc. v. ACOE
The National Mining decision follows the Fourth Circuit decision in Precon Development Corp., Inc. v. Army Corps of Engineers, in which the Court also limited use wetland guidance in permitting decisions. In Precon, the Court refused to provide the same legal deference to the Corps permitting decision because it had failed to adopt a rule for applying the "significant nexus test."
In Precon, the Corps had utilized its 2008 Post-Rapanos guidance document in arriving at its decision a wetland was subject to federal jurisdiction. The Court found that ACOE administrative record supporting its determination was inadequate. The Court said the ACOE must find some evidence that the wetlands and other water bodies at issue perform functions that are considered "significant" for there to be determined a connection to a navigable water.
The Court suggested the ACOE jurisdictional review may have been entitled to more deference if the Agency had adopted a rule rather than using guidance in making its decision. The Court said it would not give as much deference to the ACOE application of the "significant nexus test" in this case because the Agency relied the 2008 Post-Rapanos guidance and not a rule.
The EPA and ACOE’s 2011 Post-Rapanos guidance has still not been finalized. The public comment period was closed in July.
Both the National Mining and Precon cases demonstrate that, even if the guidance is finalized, the Agency’s jurisdictional determinations will not receive as much deference without a formal rule. Furthermore, if any aspect of the 2011 guidance is found to impose unequivocal requirements on Section 404 applicants it could be struck down as illegal rulemaking.