By Lesley Foxhall Pietras

On April 27, 2011, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) released new proposed guidance on how the agencies will identify waters protected by the Clean Water Act (CWA) in light of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) and Rapanos v. United States, 547 U.S. 715 (2006). Although EPA and the Corps have previously issued guidance interpreting SWANCC and Rapanos (EPA’s earlier guidance on Rapanos is discussed at ), the agencies believe “previous guidance did not make full use of the authority provided by the CWA to include waters within the scope of the Act, as interpreted by the Court.” Guidance at 2. The agencies therefore expect that, under the new proposed guidance, “the number of waters identified by the [CWA] will increase compared to current practice.” 76 Fed. Reg. 24479, 24479 (May 2, 2011). Accordingly, the proposed guidance appears to substantially expand the agencies’ jurisdiction when compared to the prior guidance. Public comment on the proposed guidance must be received on or before July 1, 2011. Id.

In SWANCC, the Supreme Court addressed the question of CWA jurisdiction over isolated, non-navigable, intrastate ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds. In Rapanos, the Court addressed CWA protections for wetlands adjacent to non-navigable tributaries, but issued five opinions with no single opinion commanding a majority. The proposed guidance emphasizes that the plurality opinion concluded that “waters of the United States” extends beyond traditional navigable waters to include “relatively permanent, standing or flowing bodies of water.” Rapanos, 547 U.S. at 731-32; see also id. at 739. The proposed guidance also highlights the plurality opinion’s conclusion that only wetlands with a “continuous surface connection” to other jurisdictional waters are considered “adjacent” and protected by the CWA. Id. at 742. In contrast, Justice Kennedy’s concurring opinion, the proposed guidance notes, concluded that “waters of the United States” includes wetlands with a “significant nexus” to traditional navigable waters. Rapanos, 547 U.S. at 780. The agencies continue to believe that they can assert jurisdiction over waters that satisfy either the plurality standard or Justice Kennedy’s standard, because a majority of justices would support jurisdiction under either standard. Guidance at 2.

Under the proposed guidance, the following waters are protected by the CWA: traditional navigable waters (including water bodies that have been found to be navigable-in-fact by a federal court, and waters which are currently used, historically have been used, or are susceptible to being used for commercial navigation); interstate waters (even if such waters are not traditional navigable waters); and wetlands adjacent to either traditional navigable waters or non-wetland interstate waters.

Moreover, the proposed guidance determines which waters are covered by the CWA pursuant to the standard set out in the Rapanos plurality opinion. In this vein, non-navigable tributaries are subject to CWA jurisdiction, if the tributary is connected to a downstream traditional navigable water, and flow in the tributary is at least seasonal. Guidance at 13. Wetlands that directly abut relatively permanent waters are also covered by the CWA. Id. at 15.

Additionally, the following types of waters are covered by the CWA if a fact-specific analysis determines they have a “significant nexus” to traditional navigable waters or interstate waters:
• tributaries to traditional navigable waters or to interstate waters;
• wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters; and
• waters that fall under the “other waters” category of the regulations, including intrastate lakes, rivers, and mudflats. The proposed guidance divides these waters into two categories (those that are physically proximate to other jurisdictional waters and those that are not) and discusses how each category should be evaluated.
According to the proposed guidance, waters have the requisite “significant nexus” “if they, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters or interstate waters.” Guidance at 7.

Under the proposed guidance, waters that are not covered by the CWA include artificially irrigated areas which would revert to upland if the irrigation ceased; artificial lakes or ponds which are used for stock watering, irrigation, settling basins, or rice growing; artificial reflecting pools or swimming pools excavated in uplands; water-filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill; groundwater drained through subsurface drainage systems; and erosional features, swales and ditches that are not tributaries or wetlands. Guidance at 21.

The proposed guidance will apply to all CWA programs, including section 303 water quality standards, section 311 oil spill prevention and response, section 401 water quality certification, section 402 National Pollutant Discharge Elimination System permits, and section 404 permits for discharges of dredged or fill material.

After the agencies receive comment on the proposed guidance, they plan to finalize the guidance and then propose revisions to the existing regulations to further clarify which waters are covered by the CWA.

For more information on the proposed guidance, see