Epa and Corps Guidance on Clean Water Act Jurisdiction - January 2008 - Natural Resource and Environmental Law
| Publication year | 2008 |
| Pages | 39 |
2008, January, Pg. 39. EPA and Corps Guidance on Clean Water Act Jurisdiction - January 2008 - Natural Resource and Environmental Law
January 2008
Vol. 37, No. 1 [Page 39]
Natural Resource and Environmental Law
EPA and Corps Guidance on Clean Water Act Jurisdiction
by Stephen Louthan, Steve Dougherty
Natural Resource and Environmental Law articles are sponsored by the CBA Environmental Law, Water Law, and Mineral Law Sections. The Sections publish articles of interest on local and international topics.
Article Editors:
Melanie Granberg (Environmental), Denver, Gablehouse Calkins & Granberg, LLC - (303) 572-0050, mgranberg@gcgllc.com; Kevin Kinnear (Water), Boulder, Porzak Browning & Bushong LLP - (303) 443-6800, kkinnear@pbblaw.com; Joel Benson (Mineral), Denver, Davis Graham & Stubbs LLP - (303) 892-7470, joel.benson@dgslaw.com
About the Authors:
Stephen Louthan is an attorney with Greenberg Traurig LLP. He counsels clients in the retail and energy industries and corporate clients on a variety of matters - louthans@gtlaw.com. Steve Dougherty is a principal and senior ecologist with ERO Resources Corporation. He specializes in wetland and riparian systems, Endangered Species Act compliance, and environmental issues associated with water supply - sdougherty@eroresources.com.
In June 2007, the EPA and U.S. Army Corps of Engineers released guidance implementing the U.S. Supreme Court's Rapanos decision. After briefly discussing the effects of the Rapanos decision, this article explains the new system for making jurisdictional determinations (JDs) concerning which wetlands and waters fall under Section 404 of the Clean Water Act. The article focuses on the information needed to make a JD, the significant nexus evaluation, and effects of the guidance.
Jurisdiction under the federal Clean Water Act (CWA) is a challenging legal question and one of the most contentious issues in environmental law. In Rapanos v. United States,(fn1) the U.S. Supreme Court released its third opinion on the subject. The opinion addressed CWA jurisdiction and added to the confusion surrounding this issue. As discussed in article, "Federal Jurisdiction Under the Clean Water Act After Rapanos," published in the December 2006 issue of The Colorado Lawyer,(fn2) Rapanos is difficult to interpret because of the complexity of CWA jurisdiction and the divided nature of the Supreme Court. Shortly after the release of Rapanos, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) stated that agency guidance soon would be forthcoming. In June 2007, approximately one year after the Rapanos opinion was issued, EPA and the Corps released the "CWA Guidance to Implement the U.S. Supreme Court Decision for the Rapanos and Carabell Cases."(fn3)
This article provides an overview of the guidance and explains how it affects jurisdictional determinations (JDs) concerning which wetlands and waters fall within the scope of CWA Section 404. It continues the discussion from the December 2006 article, which focused on the Rapanos opinion and its effects. This article focuses on the information needed to make a JD for various classes of wetlands and waters, and explains the "significant nexus" evaluation. It also discusses effects of the guidance, unresolved issues, and the potential impact on the western United States.
Background
Confusion surrounding CWA jurisdiction began with the Act itself. The CWA does not define "waters of the United States," which are the waters covered under the CWA. Several members of Congress recently introduced bills to define "waters of the United States."(fn4)
Over two decades in a triumvirate of cases grappling with the meaning of "waters of the United States," the U.S. Supreme Court created its test for determining CWA jurisdiction.(fn5) That test asks whether the waters in question have a "significant nexus" to a water body eventually connected to traditional navigable waters (TNWs). The term "significant nexus" originally was used in the SWANCC decision, where the Court considered whether the body of water that potentially may fall under the jurisdiction of the CWA has a significant nexus to the navigable interstate waterway.(fn6)
The Rapanos Opinion
U.S. Supreme Court Justice Antonin Scalia wrote the plurality opinion in Rapanos, in which he stated that the CWA extends to only "relatively permanent, standing, or continuously flowing" waters.(fn7) In his concurrence, Justice Kennedy referred to a "significant nexus," which he described in general terms. Although he did not provide a concrete definition of the term as it relates to the general purposes of the CWA,(fn8) Justice Kennedy's significant nexus test asks whether the waters or wetlands in question, "either alone or in...
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