Draft Final Guidance Does Not Give Blanket Protection to Geographically Isolated Waters

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By Amena H. Saiyid  

The Environmental Protection Agency and the U.S. Army Corps of Engineers will not consider blanket protection under the Clean Water act for geographically isolated waters, but they reserve the right to make case-by-case determinations on those waters, according to a draft version of final joint guidance obtained by Bloomberg BNA March 6.

The agencies say they are proceeding with the final Clean Water Protection Guidance to “clarify their existing understandings, reduce confusion, and increase certainty, while they prepare to initiate rulemaking.”

The White House Office of Management and Budget began reviewing the final guidance, which was developed by EPA and the corps, on Feb. 21 . The guidance, which was proposed in May, clarified which waters are subject to Clean Water Act jurisdiction in response to two key U.S. Supreme Court decisions (35 DEN A-1, 2/23/12).

A source with knowledge of the document obtained by Bloomberg BNA said it is the version under review at the White House, although EPA was not available to confirm that or to comment on the document.

Scope of Jurisdiction

Unlike the proposed version, the final document obtained by Bloomberg BNA does not say it will expand the scope of jurisdiction over federal waters. Instead, it said that “the Supreme Court decisions in SWANCC and Rapanos combined to reduce the historic scope of the CWA jurisdiction, and this guidance reflects these decisions.”

“However, each jurisdictional determination will continue to be made on a case-by-case basis considering the facts and circumstances and consistent with applicable statutes, regulations, and case law,” according to the final guidance.

Under the proposed guidance, federal jurisdiction and permitting requirements would have been expanded to include many intermittent and ephemeral streams and wetlands not covered explicitly by the Clean Water Act.

Years of Confusion

The guidance is being issued after years of confusion on how to interpret two U.S. Supreme Court decisions on what constitutes waters of the United States and after previous guidance attempted to interpret these cases (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),531 U.S. 159, 51 ERC 1838 (2001); Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006)).

SWANCC limited the agencies' ability to regulate geographically isolated wetlands as waters of the United States merely because of their connection to migratory birds.

The Clean Water Protection Guidance spells out the difficulty of applying the “significant nexus” standard, which was articulated by Supreme Court Justice Anthony Kennedy in his concurring opinion in Rapanos, to geographically isolated other waters.

The guidance also says the agencies would treat physically proximate “other waters” as adjacent wetlands to traditional navigable waters for the purposes of Clean Water Act jurisdiction.

Other waters include intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.

In the final guidance, EPA and the corps repeated their commitment to pursue a rulemaking to define “waters of the United States” consistent with the Administrative Procedure Act and requested by environmental groups and industry groups alike.

For More Information

The joint EPA, corps Clean Water Act Guidance is available at http://op.bna.com/env.nsf/r?Open=jsun-8s629h.

Attachment A to the guidance is available at http://op.bna.com/env.nsf/r?Open=jsun-8s62b6.