In its proposed Clean Water Act (CWA) jurisdiction guidance issued on April 27, EPA pulled back from its statement in an earlier draft guidance that the guidance would “increase significantly” the number of water bodies subject to the CWA.  The proposed guidance did not, however, remove language about jurisdiction over tributaries to traditionally navigable waters and wetlands adjacent to those tributaries, to which lawmakers and industry had objected as an expansion of EPA’s view of jurisdiction from the Bush Administration.

EPA’s guidance, proposed jointly with the Corps of Engineers, is being developed in response to widespread uncertainty about the jurisdictional reach of the CWA in the wake of the Supreme Court’s divided opinion in Rapanos v. U.S.

The Rapanos decision contained three different tests for jurisdictional reach, authored by Justice Scalia on behalf of a four justice plurality, Justice Stevens on behalf of a four justice dissent, and Justice Kennedy as the swing vote who voted with the plurality, but under a different test.  It is widely assumed that waters which satisfy the Scalia test will always be considered jurisdictional and that waters that satisfy the Kennedy test may also be jurisdictional.  The uncertainty left by Rapanos has led to a drop in enforcement cases.

The EPA guidance focuses most heavily on advancing a broad interpretation of Justice Kennedy’s “significant nexus” test as the basis for CWA jurisdiction.  The proposed guidance would include most tributaries of traditionally navigable waters, and wetlands near those tributaries, as “waters of the U.S.,” because the guidance would aggregate the influence of “similarly situated” streams and wetlands within a watershed on downstream jurisdictional waters.

All observers agree that the new guidance will significantly expand CWA jurisdiction from the view followed by the Bush Administration.  In April, a bipartisan group of 170 members of the House of Representatives urged EPA to reconsider the guidance, and instead pursue changes via formal rule making or through legislation.  EPA Administrator Jackson, however, said it is imperative that the agency replace a “flawed” 2008 Bush Administration interpretation that leaves too many marginal waters unprotected.  In a test to determine the impact of the new guidance, the Corps determined that 17% of waters determined to be non-jurisdictional under the Bush Administration interpretation would now be jurisdictional under the proposed guidance.

EPA and the Corps are taking comment on the proposed guidance for 60 days.  If you have comments or concerns, or for more information on CWA jurisdiction or the proposed guidance, contact Steve O’Day (soday@sgrlaw.com) or Andy Thompson (athompson@sgrlaw.com).