Richard E. Glaze, Jr., Partner, Balch & Bingham, LLP
On May 2, 2011, the United States Environmental Protection Agency and the United States Army Corps of Engineers issued draft joint guidance for the interpretation of the phrase "waters of the United States" under the Clean Water Act. Determinations of CWA jurisdiction are critical for the agencies in issuing permits to fill wetlands under Section 404 of the CWA and in CWA enforcement actions. The proposed guidance purports to "clarify" how the agencies will "understand" existing requirements of the CWA and identify waters protected by the CWA "in light of" the holdings in Solid Waste Agency of Northern Cooke County v. U.S. Army Corps of Engineers ("SWANCC") and Rapanos v. United States ("Rapanos"). As argued below, the guidance would, if issued in its current form, do more than "clarify understanding." Instead, it would provide the agencies a basis for exercising broader authority over the nation's waters than current policy supports. This expansion would be wrought by a few definitional and linguistic changes, some of which would be consistent with the CWA as interpreted in Rapanos and SWANCC and others which would be inconsistent.
To understand these issues, it is important to understand how waters over which the Corps and EPA have jurisdiction are defined in relevant statutes and regulations. Under the CWA, the term "navigable waters" is used for waters to which the act applies for several purposes including, but not limited to (1) Section 402 permitting (discharges to surface water); (2) Section 404 permitting (discharges into wetlands); and (3) enforcement related to discharges to water. The term "navigable waters" is defined in the CWA as "waters of the United States, including the territorial seas." "Waters of the United States," in turn, is broadly defined in agency regulations to include both traditionally navigable waters and other types of waters, including wetlands and "isolated waters" that may or may not be "navigable" as that word in commonly used.
In SWANCC, the Court ruled that federal authority under the CWA does not extend to isolated waters. The case involved a group of Illinois municipalities that had organized themselves into a municipal corporation known as the Solid Waste Agency of Northern Cook County, or "SWANCC." SWANCC purchased a 533-acre site for disposing of solid waste, but the Corps denied the permit required under Section 404 of the CWA to fill 17.6 acres of small, seasonal ponds and ditches, and SWANCC sought judicial review of the Corps' decision. The Corps based its assertion of jurisdiction over the waters at issue on the "migratory bird rule," which provided that waters used as habitat for migratory birds established the necessary connection to interstate commerce for a water to be jurisdictional. The Court held, however, that the Corps' assertion or jurisdiction on this basis exceeded the authority granted to it under Section 404(a) of the CWA. The Court held that the agencies' expansive definition of the term "waters of the United States" was so broad that the word "navigable" as used in the CWA had become meaningless. The Court believed that Congress' use of the word "navigable" demonstrated that, in enacting the CWA, it had in mind "[the Corps'] traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made."
In Rapanos, the Supreme Court examined the Corps' jurisdiction over wetlands that were located near "ditches or manmade drains" that "eventually" emptied into "traditional navigable waters." One of the wetlands was separated from the nearby ditch by a man-made berm. The Court endeavored to determine whether the wetlands were "waters of the United States" subject to jurisdiction under the CWA, and to provide an understandable framework making the determination. According to the evidence as viewed by the Court, it was "not clear whether the connections between these wetlands and the nearby drains and ditches [were] continuous or intermittent, or whether the nearby drains and ditches contain[ed] continuous or merely occasional flows of water."
The Court issued five opinions, none of which was accepted by a majority of the Court. The plurality opinion, authored by Justice Scalia, stated that the term waters of the United States includes "only . . . relatively permanent, standing or flowing bodies of water" and that only wetlands with a "continuous surface connection" to other jurisdictional waters are considered to be "adjacent" and protected by the CWA. Scalia also explained that the term "waters of the United States" as used in the CWA should be limited to those that are "navigable in fact or susceptible of being rendered so." Justice Kennedy's concurring opinion, using a different approach, held that "waters of the United States" include only wetlands that have a significant nexus to traditional navigable waters, meaning that the wetlands must, "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable'." Kennedy explained that such traditional navigable waters include only waters that are "navigable in fact or susceptible of being made so." Justice Stevens, and the three justices who joined in his dissenting opinion, would have upheld CWA jurisdiction over the wetlands parcels under the agencies' existing regulations and under either the plurality test or Justice Kennedy's significant nexus analysis.
Read or download for free the complete article, Rapanos Guidance III - "Waters" Revisited.
 The author is grateful for the research and editing assistance of Melissa Oellerich, summer associate for Balch & Bingham.
 Hereinafter, the United State Environmental Protection Agency is "EPA"; the United States Army Corps of Engineers is "the Corps"; and EPA and the Corps are referred to together as the "agencies."
 Environmental Protection Agency and U.S. Department of the Army, Draft Guidance on Identifying Waters Protected by the Clean Water Act 3 (May 2, 2011), available at http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf [hereinafter "proposed guidance" in text and "Proposed Guidance" in citations]. The proposed guidance is noticed at 76 Fed. Reg. 24479 (2011). The Federal Register notice describes the guidance as "proposed guidance that describes how the agencies will identify waters protected by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA or Act) and implement the Supreme Court's decisions regarding this topic (i.e., Solid Waste Agency of Northern Cooke County, 531 U.S. 159 (2001) (SWANCC) and Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos)." The comment period on the proposed guidance was originally scheduled to close July 1, 2011, but was extended to July 31, 2011.
 33 U.S.C. § 1251 et seq. Hereinafter, the Clean Water Act is referred to as 'the CWA."
See 33 U.S.C. §1344(a).
See 33 U.S.C. §§ 1319(b) and (c) (civil and criminal enforcement actions for violations of the CWA) and 33 U.S.C. §§ 1311(a); 1342(a)(1); 1344(a)(1) and 1362(7) (combined, requiring a permit to discharge a pollutant, including dredged and fill materials, into waters of the United States).
See Proposed Guidance, supra note 3, at 1 ("This draft guidance clarifies how the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) will identify waters protected by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA or Act) and implement the Supreme Court's decisions concerning the extent of waters covered by the Act (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States (Rapanos)). This document clarifies how the EPA and the Corps understand existing requirements of the CWA and the agencies' implementing regulations in light of SWANCC and Rapanos and provides guidance to agency field staff in making determinations about whether waters are protected by the CWA.").
See 33 U.S.C. §1342, 33 U.S.C. §1344, and 33 U.S.C. § 1319, respectively.
33 U.S.C. §1362.
"Traditionally (or traditional) navigable water(s)" will be referred to hereinafter at "TNW" or "TNWs" as appropriate for the context.
See 33 C.F.R. § 328.3(a)(5); 40 C.F.R. § 230.3(s)(5); and 40 C.F.R. § 122.2 ("waters of the U.S."). The term "navigable water" is therefore very broad and should be distinguished from the term "navigable in fact water," which is much narrower. The latter term is used by Justice Kennedy in his concurring opinion in Rapanos. See infra pp. 2-3 for a discussion of the Rapanos decision; see also The Daniel Ball, 77 U.S. 557, 563 (1870), where the term "navigable in fact" was apparently first used by the Supreme Court. Another term for waters is "navigable waters of the United States," which describes jurisdictional waters under the Rivers and Harbors Act of 1899. 33 U.S.C. § 401 et. seq. This term is defined in 33 C.F.R. § 329.4 as those waters that are "subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce," a definition which is similar to the Kennedy description of relevant waters for applying the significant nexus test in Rapanos. The proposed guidance incorporates this definition in the definition of TNW, providing that TNWs include waters that are subject to Sections 9 or 10 of the Rivers and Harbors Act. Proposed Guidance, supra note 3, at 6. Note, however, that the Corps regulations provide that "[t]his definition does not apply to authorities under the Clean Water Act which definitions are described under 33 CFR Parts 323 and 328." 33 C.F.R. § 329.1.
Solid Waste Agency of Northern Cooke County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) [hereinafter SWANCC].
See 51 Fed. Reg. 41217.
See 531 U.S. at 165 (citing U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)). In Riverside, the Court upheld jurisdiction over wetlands "adjacent" to navigable waters. In that case, the Court ruled that Congress intended the term "navigable waters" to include at least some waters that would not be deemed "navigable" under the classical understanding of that term. However, the Court in SWANCC noted that there is a difference between giving the term "navigable" limited effect and giving the term no effect at all.
Rapanos v. United States, 547 U.S. 715 (2006).
Id. at 729. As described by the Court:
the Rapanos and their affiliated businesses, deposited fill material without a permit into wetlands on three sites near Midland, Michigan: the "Salzburg site," the "Hines Road site," and the "Pine River site." The wetlands at the Salzburg site are connected to a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and Lake Huron. The wetlands at the Hines Road site are connected to something called the "Rose Drain," which has a surface connection to the Tittabawassee River. And the wetlands at the Pine River site have a surface connection to the Pine River, which flows into Lake Huron. . . . [t]he Carabells [petitioners in the consolidated case], were denied a permit to deposit fill material in a wetland located on a triangular parcel of land about one mile from Lake St. Clair. A man-made drainage ditch runs along one side of the wetland, separated from it by a 4- foot-wide man-made berm. The berm is largely or entirely impermeable to water and blocks drainage from the wetland, though it may permit occasional overflow to the ditch. The ditch empties into another ditch or a drain, which connects to Auvase Creek, which empties into Lake St. Clair. Id. (citations omitted).
 Id. at 730.
 See 33 U.S.C. § 1344(a).
 Rapanos, 547 U.S. at 729.
 Id. at 739.
 Id. at 734.
 Id. at 780
 Id. at 779.
 Id. at 810.
Reprinted with permission by Balch & Bingham LLP.
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