By Janell M. Bogue and Diane G. Kindermann Henderson
On June 5, 2007, the EPA and the Army Corps of Engineers (“Corps”) jointly issued guidance consistent with the Supreme Court’s decision in Rapanos. This document is entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States (“Guidance”). The issue in Rapanos was whether a wetland or tributary can be defined as a “water of the U.S.” and thus be subject to jurisdiction under the Clean Water Act (“CWA”). (That case is discussed in depth in a previous Land Use Law Blog article “District Court Struggles with Rapanos in U.S. Pipeline v. Chevron Pipe Line.”) Because the Court issued five separate opinions, it was unclear whether certain types of waters were jurisdictional. The guidance document establishes several categories of waters and discusses whether or not the agencies may assert jurisdiction.
Waters that are jurisdictional
First, the Guidance says that the Corps will continue to assert jurisdiction over traditionally navigable waters and their adjacent wetlands. The Rapanos decision did not affect those waters. Navigable is defined as “the waters of the United Sates, including the territorial seas.” 33 U.S.C. § 1362(7). Waters of the United States are under federal jurisdiction because of their role in interstate commerce. Wetlands are included as jurisdictional because of their importance to the drainage network and integrity of the nation’s waters.
Second, the Guidance addresses relatively permanent non-navigable tributaries of traditional navigable waters and wetlands with a continuous surface connection with such tributaries. The Guidance says that the agencies will assert jurisdiction when the water is a non-navigable tributary of a traditionally navigable water. This means that the non-navigable water body flows either directly or indirectly (by means of another tributary) into a traditionally navigable water. This includes relatively permanent waters that typically flow year round and waters that flow at least seasonally (e.g., typically three months). Additionally, the wetlands that directly abut those tributaries will be deemed jurisdictional.
The Guidance notes that “relatively permanent” does not include ephemeral tributaries which flow only in response to precipitation. Also not included are intermittent streams which do not flow year round or seasonally. However, the agencies will decide whether those kinds of waters will be deemed jurisdictional using the significant nexus test described below.
Finally, the Guidance says that the agencies will assert jurisdiction over certain waters when they have a significant nexus with a traditional navigable water. (The significant nexus test is discussed below.) These waters include:
- Non-navigable tributaries that are not relatively permanent;
- Wetlands that are adjacent to non-navigable tributaries that are not relatively permanent; and
- Wetlands adjacent, but not directly abutting, relatively permanent tributaries (separated by a berm, dike, etc.).
The significant nexus test
In applying the significant nexus test, the agencies will focus on the integral relationship between ecological characteristics of tributaries and adjacent wetlands. This is influenced by physical proximity, as well as shared hydrological and biological characteristics. The agencies will first determine whether the tributary has any adjacent wetlands. If not, they will look to the flow characteristics and functions of the tributary itself to see if the tributary has an effect on traditionally navigable waters. This will be considered together with the functions performed by the wetlands adjacent to that tributary. Principal hydrological considerations include:
- Volume of flow of water in the tributary
- Duration of flow of water in the tributary
- Frequency of flow of water in the tributary
- Proximity of the tributary to traditional navigable water
- Other relevant factors
Then, the agencies will evaluate whether the tributary and adjacent wetlands are likely to have an effect on the integrity of a traditionally navigable water. The effect must be more than speculative or insubstantial. If, using all of the aforementioned factors, the agencies determine that there is a significant nexus, then the provisions of the CWA will apply and the water will be deemed jurisdictional.
Swales, erosional features, and ditches
The Guidance also clarifies that swales and erosional features (such as gullies, small washes, etc.) are generally not jurisdictional. Additionally, ditches in upland areas that do not carry a relatively permanent flow of water are not jurisdictional.
Finally, the Guidance states that the administrative record must support a jurisdictional determination. Thus, any paperwork must explain the reasons for a jurisdictional determination and disclose any data used in that determination. This includes maps, photos, soil surveys, literature, and references.
The Guidance can be found on the US EPA website.
Janell Bogue is an associate and Diane Kindermann is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.