The Environmental Protection Agency and U.S. Army Corps of Engineers issued revised guidance Dec. 3 in an effort to clarify the scope of Clean Water Act protection, providing more detail on several issues, including how to identify traditional navigable waters and adjacent wetlands.

The new guidance updates an earlier document released in June 2007 that sought to interpret a decision in the Rapanos case a year earlier by a divided U.S. Supreme Court, which created confusion over what waters fall under the jurisdiction of the law.

The question is important because Clean Water Act coverage entails a number of regulatory requirements, including permits issued by the Corps under Section 404 to dredge and fill wetlands.

More Than 66,000 Comments

The agencies said the revised guidance follows their evaluation of more than 18,000 jurisdictional determinations and review of more than 66,000 comments submitted in response to the 2007 document.

The changes include provisions outlining examples of what may be considered “traditional navigable waters.” Among the examples are waters used, or susceptible to being used, for commercial navigation, including commercial waterborne recreation such as boat rentals, guided fishing trips, or water skiing tournaments.

The new guidance also provides more detail for determining whether a wetland is adjacent to a traditional navigable water. EPA and the Corps said that, consistent with the regulatory definition at 33 CFR 328.3(c), a wetland is adjacent if it has “an unbroken hydrologic connection” to jurisdictional waters or is separated from those waters by a berm or similar feature or is reasonably close to a jurisdictional water.

A third change addresses the question of whether a tributary of a navigable water is subject to the act, allowing regulators flexibility in assessing the flow of a particular stream in making the determination.

The revised guidance is the latest development in efforts by developers, environmental groups, regulators, and others to sort out Clean Water Act jurisdiction over U.S. waters in the wake of the Supreme Court decision in Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006).

Ruling Created Confusion

In that case, a plurality opinion written by Justice Antonin Scalia urged a test restricting jurisdiction under the act to relatively permanent bodies of water and wetlands with a continuous surface connection to water bodies that are themselves waters of the United States. In a concurring opinion, Justice Anthony M. Kennedy urged restricting jurisdiction to wetlands with a significant nexus to waters of the United States. Kennedy said a mere hydrologic connection should not be enough to establish a significant nexus in all cases.

The resulting confusion from that decision and the ensuing guidance issued in June 2007 has led to a slowdown in jurisdictional determinations by the Corps and impeded EPA enforcement initiatives.

Benjamin Grumbles, EPA assistant administrator for water, said in a statement, “The guidance builds upon our experiences and provides consistent direction to our staff and the public.”

John Paul Woodley Jr., assistant secretary of the army for civil works, said the revised document “will enable the agencies to make clear, consistent, and predictable jurisdictional determinations within the scope of the Clean Water Act.”

Analysts were divided over the significance of the changes in the revised guidance.

Jim Murphy, wetlands and water resources counsel for the National Wildlife Federation, expressed concern, particularly with the use of the terms “commercial navigation” and “commercial waterborne recreation.”

According to Murphy, that suggests there needs to be a business interest in the body of water for it to be considered a traditional navigable water. A lake used by friends for recreational kayaking might not be covered unless there is an organized kayaking tournament, he said.

“The term 'commercial navigation' has the potential for narrowing jurisdiction,” he told BNA, calling that “the most troubling change.”

Dierdre Duncan, a partner with Hunton and Williams in Washington, D.C., said the new guidance “nibbles around the edges. They didn't take on any tough issues.”

'Shortcut' for Decisions

Duncan said in some areas it appeared the agencies were “looking for a shortcut” to make it simpler for regulators to make jurisdictional determinations.

For example, a wetland would be considered adjacent to a navigable water if it is “reasonably close” and such a finding would support “the science-based inference” that those wetlands have an ecological connection with jurisdictional waters, such as amphibians or fish that move back and forth. In that case, there would be no need for what the agencies called a case-specific demonstration of an ecological connection.

Duncan said the guidance allows regulators to use that inference, which could speed up the time it takes to make a determination.

The environmental group American Rivers criticized the guidance in a statement, saying thousands of miles of streams and clean water remain at risk. “The revised guidance does nothing to change the destructive approach created by the Bush Administration's original guidance, but instead continues to substantially limit the number of waters which will be protected by the Clean Water Act,” the group said.

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The guidance and related information are available on the Web at http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html.

Copyright 2009, The Bureau of National Affairs, Inc.