News & Articles

Army Corps of Engineers "clarifies" Wetlands Rules

    The U.S. Army Corps of Engineers and EPA issued new guidance on December 2, 2008 regarding when they will claim jurisdiction over "waters of the United States." The new guidance comes the day after the United States Supreme Court refused to take a case (McWane) that may have provided more certainty than its badly-split 2006 decisions in Rapanos v. United States and Carabell. It incorporates the "old" 2007 guidance. The new guidance says that "regulatory jurisdiction exists over a water body if either the plurality's (that is, Justice Scalia's) or Justice Kennedy's standard is satisfied." The McWane case had used the Kennedy "substantial nexus" test.

    Per se jurisdiction. Specifically, EPA and the Corps will assert jurisdiction over traditional navigable waters (i.e., "navigable in fact"), and over non-navigable tributaries of traditionally navigable waters that are relatively permanent (where the tributaries typically flow year round or have continuous flow at least seasonally (e.g., typically three months)), and over the wetlands that directly abut or neighbor both such waters.

    Case-by-case jurisdiction. On a case-by-case basis, EPA and the Corps will decide jurisdiction, based on whether other waters "have a significant nexus" with traditional navigable waters. These include such waters as non-navigable tributaries that are not relatively permanent; wetlands adjacent to non-navigable tributaries that are not relatively permanent; and wetlands near, but not directly abutting, a relatively permanent non- navigable tributary.

    No jurisdiction. EPA and the Corps have declared they will not take jurisdiction over swales and gullies or over ditches that do not carry a relatively permanent flow of water. However, such waters could still serve as hydrological connections between wetlands and traditional navigable waters. Notwithstanding the general rule, certain ephemeral waters in the arid west may be jurisdictional because they provide habitat, filtration, entrapment and substantial nexus with downstream traditional navigable waters.

    Significant Nexus test. This test will be applied by assessing flow characteristics and functions of the tributary and those functions performed by all wetlands adjacent to it to determine if they significantly affect the chemical, physical and biological integrity of downstream traditionally navigable waters – including hydrologic (i.e., volume, duration, frequency, proximity to navigable water, size of watershed, average annual rainfall, and average annual winter snow pack), ecologic (i.e., potential to carry pollutants and flood waters, provision of aquatic habitat and filtration potential), and physical (e.g., ordinary high water mark, water staining or scour) factors. Thus, EPA and the Corps may assert jurisdiction over wetlands adjacent to traditionally navigable waters, even if they don't have a continuous surface connection with each other, (as would have been required by Justice Scalia for the Rapanos plurality.) It follows that if a dike or natural river berm or dune separates the traditional navigable water from the wetlands, the agencies may assert jurisdiction, provided a significant nexus can be established. Wetlands next to jurisdictional tributaries do not require an independent significant nexus test. To be substantial, the effect must be more than speculative or insubstantial on the chemical, physical and biological integrity of the traditional navigable water. The agencies take the position that there is no change from the 2007 guidance on the question of substantial nexus.

    Adjacency. The Corps and EPA will use three criteria to define adjacency:
1) there needs to be an unbroken surface or shallow subsurface water connection; 2) there is a physical separation; and 3) the proximity of the wetland and traditional navigable water is reasonably close (thus leading to an implication of ecological connection).

    Tributaries and flow. A continuously flowing tributary is jurisdictional. However, in the case of intermittent streams which do not have at least a continuous seasonable flow or an ephemeral stream that only flows fitfully or at broken intervals, the Corps and EPA will not choose jurisdiction. A tributary with continuous flow could be natural, man-altered or manmade. Where the downstream end of the reach is not representative of the remainder of the reach, "the regime that best characterizes the tributary should be used."

    Order. Once a portion of the same order of stream is determined, then the whole reach of the stream in the same order is subject to jurisdiction.

    Delay. To implement Rapanos, the Corps enhanced its jurisdictional determination (JD) process. Commenters on the 2007 guidance had complained that the JD process extends the permit approval time, even though the Corps committed to processing JDs (and preliminary JDs) in 60 days. To solve the problem of delay, a Regulatory Guidance Letter has been adopted by the Corps (RGL 08-02, issued in June of 2008). This guidance allows an applicant to agree to a "preliminary JD", which amounts to an "opt-in" to jurisdiction by the Corps over all waters on the site. The preliminary JD allows the Corps to proceed to permit processing without waiting for a "coordinated" JD. The preliminary JD does not foreclose an applicant from raising the question of jurisdiction if the applicant receives a permit denial. However, if the question is raised, then the Corps must go through the formal JD approval process.

    Opinion of writer. The above is "guidance." This means it is policy and not "law" as such. It is still subject to interpretation both in the field and on the basis of desk reviews. While there are some small clarifications of the 2007 "guidance," there are few substantive changes in this December 2, 2008 document.

    If you have any questions about these issues or have a permit issue you are having trouble resolving, please call Black Helterline and confer with Steve Schell, Paul Hribernick, Stark Ackerman or Clarence Greenwood at (503) 224-5560.