Environmental Law Alert: EPA and Corps Issue Long-Awaited Joint Wetlands Guidance Memorandum
6/7/2007

The U.S. Army Corps of Engineers (the "Corps") and the Environmental Protection Agency ("EPA") have issued their long-awaited interagency joint guidance memorandum (the "Memorandum") on the scope of regulatory jurisdiction over wetlands. The Memorandum attempts to answer regulatory jurisdiction questions that persist in the wake of a fractured 2006 U.S. Supreme Court decision in the consolidated cases Rapanos v. United States and Carabell v. United States (collectively "Rapanos"). Unfortunately, the Memorandum's explanation of the case-specific "significant nexus" test set forth by Justice Kennedy in Rapanos provides the regulated community with very little objective guidance with which to predict whether wetlands are jurisdictional.

In Rapanos the Supreme Court considered the extent of Clean Water Act jurisdiction over wetlands adjacent to tributaries of navigable waters. In a "4-1-4" decision, a five-justice majority of the Court remanded the case for further consideration. Although Justice Scalia wrote an opinion commanding four votes adopting a narrow view of Clean Water Act jurisdiction, most lower courts have followed the analysis in Justice Kennedy's concurring opinion. Justice Kennedy posited that the Clean Water Act applies only to those waters with a "significant nexus" to "navigable waters." In defining "significant nexus," Justice Kennedy specified that a "mere hydrological connection" is not enough in all cases, and that "speculative or insubstantial" effects on water quality will not suffice to satisfy the test. Ultimately, however, the Kennedy opinion inspired more questions than it answered.

Almost a year after the Court issued its decision, the Corps and EPA released their Memorandum as a guidance document and invited six months of public comment. The Memorandum begins by asserting jurisdiction over all traditional navigable waters and wetlands adjacent to traditional navigable waters. Adjacency in this context is determined without regard to any surface connection, and means "bordering, contiguous, or neighboring." The agencies will also assert jurisdiction over relatively permanent nonnavigable tributaries of traditional navigable waters and those wetlands with a continuous surface connection with such tributaries. Relatively permanent tributaries are those that flow year-round or have continuous flow at least seasonally. The agencies generally will not, however, regulate swales, erosional features, or ditches—including roadside ditches—that are excavated from and drain only uplands and that do not carry a relatively permanent flow of water. These aspects of the Memorandum offer no surprises.

The Memorandum states that regulatory jurisdiction exists over a body of water if either of the tests articulated by Justice Scalia or Justice Kennedy is satisfied. Focusing primarily on Justice Kennedy's opinion, the Memorandum asserts Corps jurisdiction over waters with a "significant nexus" to traditionally navigable waters, including certain adjacent wetlands and nonnavigable tributaries that are not relatively permanent. Accordingly, "[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." The analysis must consider both hydrologic and ecologic factors. Thus Corps personnel are to make extremely fact-specific inquiries into the qualitative effect of tributaries and adjacent wetlands on navigable waters before asserting jurisdiction.

Unfortunately, the methodology employed to make a "significant nexus" determination does little to relieve the uncertainty associated with development in or around wetlands adjacent to nonnavigable tributaries. In many cases, application of the "significant nexus" test will require the regulated community and regulatory agencies to provide greater documentation supporting jurisdictional determinations. The much-delayed Memorandum provides very little objective guidance for making these regulatory determinations.

If you have any questions about this update or if you would like our assistance in connection with this matter, please contact your Stoel Rives lawyer or one of the following attorneys:

Jennie L. Bricker, jlbricker@stoel.com, (503) 294-9631
Michael R. Campbell, mrcampbell@stoel.com, (503) 294-9676
Michael P. O'Connell, mpoconnell@stoel.com, (206) 386-7692
Greg D. Corbin, gdcorbin@stoel.com, (503) 294-9632
Heath Curtiss, hcurtiss@stoel.com, (503) 294-9810

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¹ For more information on the Rapanos decision, go here.