Skip to main content
Nossaman LLP

E-Alerts

Corps and EPA Issue Long-Awaited Rapanos Guidance Document

By: Benjamin Z. Rubin, Robert D. Thornton
12/17/08

Summary

The U.S. EPA and the Army of Corps of Engineers issued their long-awaited guidance memorandum ("Guidance Memo") interpreting the Corps' Clean Water Act section 404 jurisdiction following the plurality decision of the U.S. Supreme Court in the consolidated cases Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006) (hereinafter Rapanos). Anyone hoping for a simple, bright line definition of the extent of Clean Water Act jurisdiction over tributaries and adjacent wetlands will be disappointed. The guidance borrows heavily from the concurring opinion of Justice Kennedy in Rapanos to describe the criteria to be utilized by the Corps in identifying tributaries that have a "significant nexus" to traditional navigable waters and that thus fall within the Corps' jurisdiction under section 404 of the Clean Water Act. The Guidance Memo indicates that the agencies will assert jurisdiction

1. Over non-navigable tributaries of traditional navigable waters where the tributaries flow year round or have continuous flow seasonally;

2. Over wetlands adjacent to continuous flow tributaries that have a surface connection to such tributaries (e.g, they are not separated by a berm or similar feature); and

3. Over non-navigable, not relatively permanent tributaries and their adjacent wetlands where such tributaries and wetlands have a "significant nexus" to traditional navigable waters.

The Guidance Memo generally excludes from jurisdictional waters "swales or erosional features" and ditches "wholly in and draining only uplands and that do not carry a relatively permanent flow of water."

Discussion

In early December 2008, EPA and the Corps of Engineers issued the Guidance Memo concerning the agencies' interpretation of the scope of the Corps' Clean Water Act permit jurisdiction after the Supreme Court's Rapanos decision. In Rapanos, the Court interpreted the limits of the Corps' Clean Water Act jurisdiction over tributaries to navigable waters and over wetlands adjacent to tributaries. The Supreme Court's opinion resulted in tremendous confusion because no single opinion commanded a majority of the Court and because there are sharp differences among the justices forming the majority.

The Guidance Memo indicates that the agencies will assert regulatory jurisdiction over a water body if either the standard articulated in Justice Scalia's plurality opinion or the "significant nexus" standard in Justice Kennedy's concurring opinion is satisfied. The Guidance Memo indicates when a "significant nexus" determination is required and the factors that should be considered in the determination.

The following conclusions of the Guidance Memo are notable:

Year-Round and Seasonal Flow Tributaries. The agencies indicate that they will assert jurisdiction over tributaries that flow year round or continuous over a three month period.

Swales and Ditches. The agencies indicate that they will generally not assert jurisdiction over swales and other erosional features and also will not assert jurisdiction over ditches "wholly in and draining only uplands and that do not carry a relatively permanent flow of water." The "general" exclusion of swales and ditches may exclude a number of such features in the West that were subject to the Corps' permit jurisdiction prior to Rapanos.

The "Significant Nexus" Standard. The agencies endorsed Justice Kennedy's "significant nexus" standard in large part. Importantly, the Guidance Memo indicates that the "agencies will assert jurisdiction over relatively permanent non-navigable tributaries . . . without a legal obligation to make a significant nexus finding." Guidance Memo at 7. A "significant nexus" evaluation will be required for (1) non-navigable tributaries that are not "relatively permanent," (2) wetlands adjacent to non-navigable tributaries that are not relatively permanent, and (3) "wetlands adjacent to, but not directly abutting, a relatively permanent tributary." Guidance Memo at 8.

Assessing Flow In Tributaries. The Guidance Memo elaborates on how the agencies will assess flow in tributaries for purposes of determining whether a tributary is relatively permanent, and therefore subject to the agencies' jurisdiction. The Guidance Memo defines "relatively permanent" as "waters that typically (e.g., except due to drought) flow year-round or waters that have continuous flow at least seasonally (e.g., typically three months)." Guidance Memo at 6-7. The Guidance Memo indicates that for the purposes of determining whether a tributary is relatively permanent, if data indicates that the flow regime at the downstream limit is not representative of the entire tributary (i.e., where data indicates that the tributary is relatively permanent at its downstream limits but not for the majority of its length, or vice versa), the flow regime that best characterizes the entire tributary should be used.

Determining When A Wetland Is "Adjacent." The Guidance Memo also identifies the criteria for determining when a wetland is "adjacent" and thus subject to the Corps' jurisdiction. The Guidance Memo quotes the governing regulation (33 C.F.R. § 328.3 (defining the term "adjacent")), and explains that the Agencies will consider a wetland "adjacent" to traditional navigable waters if it can satisfy one of the following three criteria: (i) there is an unbroken, although possibly intermittent, surface or shallow sub-surface connection to jurisdictional waters; (ii) the physical separation from jurisdictional waters is caused by man-made dikes or barriers, natural river berms, beach dunes, and the like; or (iii) the proximity to a jurisdictional water is reasonably close, supporting the science based inference that such wetlands have an ecological interconnection with jurisdictional water.

The Guidance Memo raises as many questions as it answers. It is unlikely to end the controversy regarding the extent of Clean Water Act jurisdiction over small seasonal flow tributaries and wetlands adjacent to such tributaries.

Ben Rubin is an Associate in the Land Use Practice Group. He assists clients on a variety of issues, including matters dealing with the Federal and State Endangered Species Act, the California Environmental Quality Act, and local zoning variances. He can be reached at 949.833.7800 or brubin@nossaman.com.

Robert Thornton has practiced environmental law for over twenty-eight years. He represents landowners, resource developers, and public agencies on a variety of environmental matters, including NEPA and CEQA compliance for complex projects. He can be reached at 949.833.7800 or rthornton@nossaman.com.

  • Professionals
  • Practices
  • Success Stories
  • News
  • Events
  • Resources
  • Firm Pages