The Army Corps of Engineers and EPA’s Joint Guidance Following the Rapanos Decision

by

Karlene Fischer

Ryley Carlock & Applewhite

 

I.         INTRODUCTION

 

The jurisdictional authority of the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) helps protect the wetlands of the United States as mandated by the Clean Water Act[1] (“CWA” or “the Act”).  As a result of the consolidated cases heard last year by the Supreme Court, Rapanos v. United States and Carabell v. United States,[2] on June 5, 2007, the Corps and the EPA issued a joint guidance regarding the Corps’ jurisdiction over waters of the United States under the CWA (Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. Untied States, available at www.epa.gov) (the “Guidance”).  Jurisdiction over waters of the United States has been an issue plagued with uncertainty for over 25 years.  Consequently, the most recent guidance is not the first attempt by federal agencies to clarify the scope of the Corps’ jurisdiction by issuing a guidance document.  Previous guidance documents include the agencies’ guidance issued in 2003 after Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers.[3] (“SWANCC”).

 

The Guidance summarizes the Supreme Court’s findings in Rapanos and provides how and when the Corps should apply the “significant nexus” test in its jurisdictional determinations.  A memorandum of agreement issued the same day as the Guidance describes the detailed procedures the Corps and EPA should use to coordinate efforts in implementing the Guidance (Memorandum for Directors of Civil Works and US EPA Regional Administrators) (“Memorandum”). 

 

II.        CONTENTS OF THE GUIDANCE

 

            A.        Scope of the Guidance         

 

The National Pollution Discharge Elimination System (“NPDES”) program and sections 402 and 404 of the CWA use the same definition of “waters of the United States.”  However, the Guidance focuses only on the Corps’ jurisdiction regarding section 404.  Section 404 prohibits the discharge of fill materials into “waters of the United States” without a permit.

 

            B.        Significant Nexus

 

The phrase “significant nexus” originated in SWANCC, based on the SWANCC Court’s interpretation of and reliance on United States v. Riverside Bayview Homes.[4]  In his concurring opinion in Rapanos, Justice Kennedy stated that a “significant nexus” test is critical to the determination of the Corps’ jurisdiction.  He stated:

 

Consistent with SWANCC and Riverside Bayview and with the need to give the term ‘navigable’ some meaning, the Corps’ jurisdiction over wetlands depends on the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.  The required nexus must be assessed in terms of the statute’s goals and purposes.[5] 

 

The “significant nexus” test determines whether a certain water is substantially connected to a traditional navigable water and thus falls within the Corps’ jurisdiction. The “significant nexus” test considers numerous factors.  The Guidance provides the factors and summarizes the significant nexus analysis as an assessment of “the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters.”[6]  Flow characteristics include the volume, duration, and frequency of the flow.  Additionally, ecological factors should be included such as the shared hydrological and biological characteristics between a tributary and an adjacent wetland. 

 

            C.        When to Apply the “Significant Nexus” Test

 

The Guidance outlines when the Corps is required to make a significant nexus determination as part of its jurisdictional determination.  The Guidance provides that certain waters do not require a significant nexus determination.  These waters include: traditional navigable waters and wetlands adjacent to traditional navigable waters, non-navigable water tributaries that are relatively permanent waters, and wetlands with a continuous surface connection with such tributaries. 

 

On the other hand, waters that must involve a fact-specific determination of a significant nexus include: non-navigable tributaries that are not relatively permanent, wetlands adjacent to non-navigable tributaries that are not relatively permanent, and wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary.

 

            The Guidance provides that “relatively permanent” does “not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do not typically flow year-round or have continuous flow at least seasonally.”[7]  However, waters that are not “relatively permanent” may still be jurisdictional if there is a finding of significant nexus.  The Guidance specifically notes that in the arid west ephemeral waters often have a significant nexus.  The Guidance argues that these waters “serve[] a transitional area between upland environment and traditional navigable waters.”[8]  Moreover, the Guidance provides that in the arid west the ephemeral waters offer habitat for wildlife and aquatic species, support nutrient cycling, trap pollutants, filter the water, and “significantly affect the chemical, physical, and biological integrity of downstream traditional navigable waters.”[9]

           

III.      NEW PROCEDURES

 

The Memorandum provides detail on how the EPA and Corps will implement the Guidance.  The coordination procedures in the Memorandum replace the coordination procedures in the 2003 Memorandum issued after SWANCC.  Agency coordination between the EPA and the Corps is not required if the Corps makes a jurisdictional determination “involving traditional navigable waters, including their adjacent wetlands, and for relatively permanent non-navigable tributaries of traditional navigable waters, including wetlands with a continuous surface connection with such relatively permanent tributaries.”[10]  Determinations either based on a “significant nexus” or involving waters that are intra-state, non-navigable, isolated waters where jurisdiction may fall under interstate commerce factors, must go through the “Coordination Procedures.”  

 

There are two different processes based on whether a significant nexus analysis is required or whether the water is an intrastate, non-navigable, isolated water.  In each process the Corps is responsible for documenting in a jurisdictional determination form both whether there was a finding of jurisdiction and the rationale for that finding, and sharing the form with the appropriate agency.  For “significant nexus” determinations, the Corps must initially share its draft jurisdictional determination form with the EPA Regional Office.  For intrastate waters, the form must ultimately be shared with the EPA Regional Office, the EPA HQ and the Corps HQ.  For “significant nexus” determinations, the Regional EPA office can choose to comment on the finding.  If it does not comment within 15 days, the Corps can finalize its determination.  For intrastate waters, the EPA Regional Office also reviews the jurisdictional determination form, but here, it can initiate a joint review with Corps HQ or it can choose to “elevate” the review to Corps HQ.  If it chooses to elevate the review, it will be reviewed first by the Regional Administrator and the District Engineer.  If the issue is not resolved at this level, it will be elevated to the EPA HQ.  At this point, the Corps HQ and the EPA HQ will attempt to reach an agreement on the determination.  A memo will be issued describing the mutual decision, or if there is no mutual decision, a memo describing EPA’s rationale supporting jurisdiction.  The Memorandum provides short time frames for each step, between five to 21 calendar days.

 

IV.      CONCLUSION

 

The Guidance summarizes Rapanos, which itself represents a long line of cases emerging after 1985 when the Court decided Riverview Bayside Homes.  As this Guidance demonstrates, since 1985 the Corps’ jurisdiction has not become significantly clearer: the obviously jurisdictional waters are still quickly and easily dismissed as being within the Corps’ jurisdiction and the tougher questions are still determined on a “case-by-case” basis dependent on numerous factors.   However, perhaps the Memorandum’s outline of when to apply the “significant nexus” test will reach the agencies’ goals of “consistency, reliability, and predictability” in the administration of the CWA.