Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP
The big news this last week was that the federal Environmental Protection Agency and the U.S. Army Corps of Engineers issued new guidance on December 3, 2008, concerning wetlands jurisdiction. The best single place to get all of the information on the new guidance is http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html. The links in the first paragraph on that site will provide the guidance, questions and answers (sort of…), and a news release. If you don’t like typing long web addresses, just go to Google and type in “Clean Water Act Definition of “Waters of the United States””– it should take you there. I tried it and it works.
The need for this guidance arises out of the disastrous U.S. Supreme Court decision in Rapanos v. United States (2006) http://www.oyez.org/cases/2000-2009/2005/2005_04_1034/. You may recall that the Court split 4-1-4 with Justice Kennedy in the middle. The controversy which followed centered on what rules for determining jurisdiction were established by the fractured ruling.
Most people, I among them, couldn’t figure it out. I wrote one article on the subject entitled “Up the Creek without a Paddle” and later co-authored, with two environmental scientists, another piece entitled “Where’s Waldo?” As the titles suggest, confusion reigned supreme.
Here is how the two federal agencies described what they are attempting to do with the new guidance. First, the agencies say they will assert jurisdiction over traditional navigable waters, which means navigable-in-fact, as in you can paddle your canoe down the stream. They will also assert jurisdiction over wetlands adjacent to traditional navigable waters and non-navigable tributaries of traditional navigable waters that are relatively permanent — where the tributaries typically flow year-round or have continuous flow at least seasonally which they define as usually for a period of three months or longer. Finally, the federal agencies will assert jurisdiction over wetlands that directly abut such non-navigable tributaries.
Now the fun begins. The agencies say they will decide jurisdiction on a case-by-case, fact-specific basis where there are non-navigable tributaries that are not relatively permanent. They will do the same with wetlands adjacent to non-navigable tributaries that are not relatively permanent. Finally, the fact-specific analysis will apply to wetlands that are adjacent to but do not directly abut a relatively permanent non-navigable tributary.
The federal agencies will not assert jurisdiction over swales or erosional features such as gullies and small washes with low volume, short duration or infrequent flows. They are also giving up whatever jurisdiction they might have claimed over ditches, including roadside ditches, which have been carved out of, and only drain, uplands and do not carry a relatively permanent flow of water.
Finally, the new guidance says that the agencies will apply the significant nexus standards which include hydrologic and ecologic factors, as well as the flow characteristics, functions of the tributary, and functions of the wetlands adjacent to the tributary.
So who won and who lost in this guidance? It looks like it’s a draw. I’ve been following all of the news stories since and it seems people on all sides are complaining.