EPA and Corps Issue Revised Guidance on Clean Water Act Jurisdiction

January 8, 2009
Client Alert Newsletter Forecast 2009

On December 3, 2008, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Corps") issued a revised version of a previously-issued guidance document regarding federal jurisdiction over "waters of the United States" under the Clean Water Act ("CWA"). By way of background, the U.S. Supreme Court's failure to issue a majority opinion in its June 2006 decision in Rapanos v. United States and Carabell v. United States (referred to jointly as "Rapanos") left EPA, the Corps, and the regulated community confused about the scope of federal jurisdiction. In June 2007, the agencies released an eagerly-anticipated guidance document ("Guidance") explaining the types of waters over which they would assert jurisdiction and how the "significant nexus" standard crafted by Justice Kennedy in Rapanos would be applied. However, the Guidance failed to adequately clarify federal jurisdiction, as evidenced by a March 2008 internal EPA memorandum finding that Rapanos and the Guidance had resulted in a decline in CWA enforcement efforts over the past two years that was partially attributable to the agencies' concerns about maintaining jurisdiction over their cases.

EPA and the Corps have therefore reviewed more than 66,000 comments submitted in response to the Guidance and added new language acknowledging that the implementation of Rapanos merits continued monitoring by the agencies, and further that additional guidance or rulemaking may be appropriate in the future. The Guidance also includes a more detailed discussion regarding what the terms "adjacent" and "traditional navigable waters" mean and what criteria must be satisfied for the agencies to consider a wetlands adjacent to traditional navigable waters. Other than these changes, however, the Guidance is the same, so it remains to be seen whether the revised Guidance will clarify federal jurisdiction. Alternatively, based on new EPA Administrator Jackson’s designation of "protecting America's water" as one of five environmental priorities for the Obama administration, it is conceivable that the Guidance could be withdrawn or re-written to support broader federal jurisdiction.