Guidance Controls Water Quality or Settlement?

After the Flood: The Jurisdictional Reach of Navigable Waters in the Post Rapanos West

Laura A. Schroeder

The Advocate, Volume 52, No. 5, May 2009

Abstract

The 2008 Guidance issued by the EPA and the Corps as those agencies interpreted the Rapanos decision expands Clean Water Act jurisdiction significantly to lands and waters in the arid West.

Introduction

In the arid west the desert blooms at least when irrigation project waters flow!  Without a doubt water flow and quality changed the desert landscape and encouraged settlement.  Now there are too many settlers in the West – or so some would say – so that water use regulation can once again control settlement by reducing population scatter and its corresponding affect on the environment.

One such control is the water use regulation established by Congress entitled the Clean Water Act (CWA) 1.   Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Id.  To achieve this purpose, the CWA prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters” with some exceptions.2  These exceptions are usually achieved by obtaining a permit under section 402 or 404 of the CWA.

CWA jurisdiction involves defining the term “navigable waters” that by law is “the waters of the United States, including the territorial seas.”3  The existence of “navigable waters” provides the jurisdictional nexus for the CWA.  The United States Supreme Court addressed interpretation of this definition in the consolidated cases Rapanos v United States and Carabell v United States 4 (Rapanos. Because Rapanos took the jurisdiction of the CWA in a different direction than earlier decisions, the Environmental Protection Agency (EPA) and the Corps of Engineers (Corps or COE) issued new guidance as to the Clean Water Act (CWA) jurisdiction in December of 2008.

The 2008 Guidance

The 2008 guidance 5 sought to reconcile the United States Supreme Court’s decision in Rapanos with earlier agency interpretation of the CWA’s jurisdictional reach to “navigable waters.”  Specifically, the December 2, 2008 guidance:

1. Clarifies how to determine the reach of the “Traditional Navigable Waters (TNW),”
2. Clarifies the regulatory term “adjacent wetlands,” and;
3. Refines the concept of “relevant reach.”

The 2008 guidance supports the US Supreme Court decisions under the CWA to substantially broaden the term “navigable” beyond those waters that are navigable-in-fact as that term is used in commercial navigation.

As many already understand, the reach of “navigable waters” under the CWA, otherwise known as “jurisdictional waters”, involves wetlands including (a) those wetlands that have an unbroken hydrologic connection to the jurisdictional waters; (b) is only separated from jurisdictional waters by a berm or similar feature; or (c) is in reasonably close proximity to a jurisdictional water.  Tributaries to jurisdictional waters while within the reach of the CWA for some time are now evaluated in the new guidance by a reach of the stream that best characterizes the flow of the tributary.

The newly adopted guidance addresses the regulatory definition of waters by discrete defined terms including (a)(1) (navigable waters), (a)(5) (tributaries), and (a)(7)(adjacent wetlands) that were addressed by the Rapanos opinions.  In accordance with both the original and revised guidance, jurisdiction over these waters will be as follows:

Summary of Key Points The agencies will assert jurisdiction over the following waters: Traditional navigable waters Wetlands adjacent to traditional navigable waters 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 (e.g., typically three months) Wetlands that directly abut such tributaries The agencies will decide jurisdiction over the following water based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water: Non-navigable tributaries that are not relatively permanent Wetlands adjacent to non-navigable tributaries that are not relatively permanent Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary The agencies generally will not assert jurisdiction over the following features: 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 The agencies will apply the significant nexus standard as follows: A significant nexus analysis will assess 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 Significant nexus includes consideration of hydrologic and ecologic factors

In particular, the 2008 guidance addresses which waters are subject to CWA 404 jurisdiction.  At issue specifically are the following provisions of agency regulations found at:  33 C.F.R. 328.3(a)(1), (a)(5), and (a)(7); 40 C.F.R. 230.3(s)(1), (s)(5), and (s)(7).  The guidance states that it intends to “identif(y) those waters over which the agencies will assert jurisdiction categorically and on a case-by-case basis, based on the reasoning of the Rapanos decision.”

The 2008 Guidance is divided into three key areas: (1) Traditional Navigable Waters (i.e., “(a)(a) Waters”) and Their Adjacent Wetlands; (2) Relatively Permanent Non-navigable Tributaries of Traditional Navigable Waters and Wetlands with a Continuous Surface Connection with Such Tributaries; and (3) Certain Adjacent Wetlands and Non-navigable Tributaries That Are Not Relatively Permanent.

Traditional Navigable Waters and Their Adjacent Wetlands

Traditional Navigable Waters (TNW) include waters that are navigable-in-fact such as waters currently used or susceptible of being used for commercial navigation.  For purposes of the CWA, commercial navigation also includes commercial water-borne recreation like boat rentals, guided fishing trips, and water ski tournaments within its definition of TNW.

When discussing adjacent wetlands, the applicable regulations require that the wetlands borders are contiguous or neighbor the TNW; however wetlands separated from the TNW by a man-made dike or barrier, natural river berm, beach dune are considered “adjacent.” 6  Under this definition, the EPA and Corps consider wetlands “adjacent” if one of the following criteria is satisfied: (1)  There is an unbroken surface or shallow sub-surface connection to the TNW that may be intermittent; (2) The wetland is physically separated from the TNW by man-made dikes or barriers, natural river berms, beach dunes, and the like; or (3)  The wetlands are reasonably close to the TNW, supporting the science-based inference that such wetlands have an ecological interconnection with the TNW. 7

Relatively Permanent Non-navigable Tributaries of Traditional Navigable Waters and Wetlands with a Continuous Surface Connection with Such Tributaries

A non-navigable tributary of a TNW includes natural, man-altered, or man-made water bodies that carry flow directly or indirectly by means of other tributaries into a TNW.  The definition of “relatively permanent” attempts to limit CWA jurisdiction to those non-navigable tributaries that flow year round or have continuous flow on a seasonal basis which the guidance suggests would typically be three months. 8  While this may lead one to an assumption that most tributaries of the arid West would not fall within the CWA jurisdiction for want of “relative permanency” the 2008 guidance specifically provides that if a tributary fails this test it may be evaluated under the “significant nexus standard.”

Included jurisdictionally are also wetlands with a physical connection to a relatively, permanent, non-navigable tributary. 9  The applicable agency regulations at 33 C.F.R. 328.3(b) and 40 C. F.R. 232.2 further explain that a continuous surface connection does not require surface water to be continuously present between the wetland and the tributary as wetlands include “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support…a prevalence of vegetation typically adapted for life in saturated soil conditions.”

Certain Adjacent Wetlands and Non-navigable Tributaries That Are Not Relatively Permanent

EPA and the Corps will apply the significant nexus test to assert CWA jurisdiction where the adjacent wetlands and non-navigable tributaries are not relatively permanent.  Application of this significant nexus test also applies to adjacent wetlands that do not directly abut a relatively permanent tributary (e.g., separated from it by uplands, a berm, dike or similar feature).  In sum, the significant nexus test assesses whether the flow characteristics and functions of the non-navigable tributary together with the function if any wetlands adjacent to the tributary significantly affect the chemical, physical and biological integrity of the downstream TNW.

While the 2008 guidance attempts to exempt “ditches” as not holding a “significant nexus” to downstream TNW, the 2008 guidance limits “ditches” to those that are “excavated wholly in and draining only uplands that no not carry a relatively permanent flow of water.” 10  Of further concern to the arid West is that the 2008 guidance specifically provides that certain ephemeral waters may be jurisdictional where the waters are tributaries that serve as a “transitional area between the upland environment and the TNW.”  In furtherance of predisposing such ephemeral waters to CWA jurisdiction, the 2008 guidance concludes:

During and following precipitation events, ephemeral tributaries collect and transport water and sometimes sediment from the upper reaches of the landscape downstream to the TNW.  These ephemeral tributaries may provide habitat for wildlife and aqua6tic organisms in downstream TNW.  These biological and physical processes may further support nutrient cycling, sediment retention and transport, pollutant trapping and filtration, and improvement of water quality, functions that may significantly affect the chemical, physical, and biological integrity of downstream TNW.

Given the geography and climate of the arid West, it is likely a rare case wherein an ephemeral stream tributary to a TNW would fail the CWA jurisdictional significant nexus test under the circumstances described in the 2008 guidance.

Conclusion

Under Rapanos and the 2008 guidance, those in the arid West must be increasingly concerned with the use, maintenance and operation of ditches and ponds or reservoirs established in or near wetlands and tributaries including ephemeral streams of traditional navigable waters without benefit of a CWA permit.