By Shanda M. Beltran, David H. Blackwell, James Burroughs, William S. Devine and Steven B. Imhoof

On June 5, 2007, nearly one year following the release of the U.S. Supreme Court decision in the consolidated cases United States v. Rapanos and Carabell v. U.S. Army Corps of Engineers (“Rapanos”), the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) released joint guidance intending to explain the new parameters those agencies will use in making claims of jurisdiction over “waters of the United States” under Section 404 of the Clean Water Act.  The guidance is in the form of a Legal Memorandum, Memorandum of Agreement, and Key Questions for use by the Corps and EPA field offices. 

The significance of this new regulatory “guidance” is unknown and untested.  On the surface, it appears that the Corps and EPA will hold themselves to a higher, more site-specific standard for claiming Section 404 jurisdiction.  What may have been deemed jurisdictional waters in the past (e.g., roadside ditches) may no longer be regulated under this program.  In other situations, agency field staff will now be required by headquarters to demonstrate a “significant nexus” to navigable waters (explained below). 

To better understand the distinctions that the federal agencies are attempting to draw between different types of “waters” that may or may not be subject to Section 404 jurisdiction under this new guidance, the joint guidance is summarized below.

Certain Claims of Jurisdiction
Four types of waters are currently regulated by the EPA and the Corps and will continue to fall under their jurisdiction:

• “Traditional navigable waters”: Waters that are, have been, or may be used in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide.
   
• Wetlands “adjacent” to traditional navigable waters:  “Adjacent” includes wetlands bordering or neighboring traditional navigable waters even without any continuous surface connection.
   
• Relatively permanent non-navigable tributaries of traditional navigable waters: Jurisdictional tributaries will include those that flow year round or seasonally (typically three months or longer).  For ephemeral tributaries, which flow only in response to precipitation and intermittent streams, the EPA and Corps will not control such waters absent a finding of “significant nexus” (see discussion below). 
   
• Wetlands with a continuous connection to jurisdictional waters: Even if not directly adjacent, wetlands with surface connection to other waters will be regulated by EPA and Corps.  However, physical barriers (berms, dikes or similar features) may preclude federal jurisdiction.

Possible Claims of Jurisdiction
Three types of waters currently regulated by the EPA and the Corps may continue to fall under their jurisdiction if a “significant nexus” between these waters and a traditional navigable water can be established.  The three types of waters subject to the significant nexus test are:

• Non-navigable tributaries that are not relatively permanent.
   
• Wetlands adjacent to non-navigable tributaries that are not relatively permanent.
   
• Wetlands adjacent to, but not directly abutting, a relatively permanent tributary (e.g., separated from it by uplands, a berm, dike or similar feature).

Under the “significant nexus” test EPA and the Corps will:

• Look collectively at both the tributary and any wetlands under consideration with the key question being: Do the interconnected areas have a significant impact on the chemical, physical, or biological integrity of downstream navigable waters? 
   
• The analysis will examine physical issues such as flow, proximity, watershed size, average rainfall/snow pack; and ecological functions such as providing habitat. 
   
• Additionally, the analysis will examine the potential of tributaries/wetlands to carry or prevent pollutants from entering navigable waters and the potential flood control purpose of wetlands.
   
• When doing a “significant nexus” analysis EPA and Corps have agreed to coordinate with one another, which could lead to additional delays in receiving permits.

Potential Disclaimers of Jurisdiction
Two types of waters will generally not be considered to be waters of the United States (but see “caveat” below):

• 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.

CAVEAT:  “certain ephemeral waters in the arid west” may nonetheless be deemed jurisdictional based on site-specific facts and application of the “significant nexus” test.

As noted at the outset, the significance of this new guidance is yet to play out.  If applied appropriately, the “significant nexus” standard could result in some limitation of federal jurisdiction in close regulatory calls.  However, the “significant nexus test”  leaves open the possibility that it could be used by some agency personnel to exert even broader control over waters than they otherwise have under the pre-Rapanos landscape. 

In either case, we anticipate that the “significant nexus” standard will control the debate regarding federal jurisdiction in all but the most obvious traditional navigable waters or isolated wetlands cases.  Until such time that Congress is spurred into promulgating new federal Clean Water Act regulations that either flesh out the meaning of “significant nexus” and/or provide more readily understandable definitions of what is meant by “navigable water” and “waters of the United States,” those in the development community will need to work very closely with their consultants, EPA, and the Corps regulators in order to keep regulatory decisions within legally justifiable bounds.

The joint guidance is effective immediately and will be used by Corps and EPA field personnel in making determinations affecting dredge and fill permits through the country.  However, EPA and the Corps are accepting comments on the joint guidance during the next six months and have stated that based upon comments received, they will revise, reissue, or suspend the guidance within nine months.