Newly Proposed Post – Rapanos Guidance: An Expansion of EPA and the Corps’ Jurisdiction over Wetlands. GIEC General Membership Annual Meeting 2011 March 24, 2011 Atlanta, Georgia Beverlee E. Silva Alston & Bird LLP 404-881-4625 [email protected]
*Revisited, yet again
Rapanos sought to determine the scope of Clean Water Act’s jurisdiction:
Regulates “Navigable Waters”
“navigable waters” are “waters of the United States, including the territorial seas . . .” 33 U.S.C. § 1362(7)
What is a “water of the United States?”
Kennedy (1) – Significant Nexus opinionTheDisharmonious Supremes
Stevens (4) – Dissenting opinion
2. (Connected) Continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
How does it categorize “waters of the United States?”
The agencies will assert jurisdiction over the following waters:
The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water:
The agencies will generally not assert jurisdiction over the following features:
Attempt # 3
“This guidance reflects the relevant science and responds to the agencies’ experience implementing previous guidance documents.”
“. . . alleviates the need to develop extensive administrative records for certain jurisdictional determinations that caused delays and added costs to both federal agencies and the regulated community.”
The draft guidance seeks to address limits on the water law’s scope by offering a new interpretation of the test provided by Kennedy, while reiterating EPA’s litigation position that regulators can rely on either the Kennedy test or the Scalia test when determining jurisdiction.
“The 2008 Rapanos guidance [Attempt #2] reflected a policy choice to interpret Justice Kennedy’s opinion narrowly, resulting in fewer waterbodies found to be jurisdictional under the CWA than under a more faithful interpretation.”
The 2010 Guidance purports to refine the agencies’ interpretation of the “significant nexus” standard so it is consistent with Kennedy’s opinion and “the science of aquatic ecosystems.”
Also purports to determine the jurisdictional status of waters not addressed by earlier guidance (for example, interstate waters).
Attempt #3 is still just guidance.
It does not have a legally binding effect on EPA, the Corps, or the regulated community.
“. . . Interested persons are free to raise questions regarding the application of this guidance to a particular situation. . . .”
NEW REGULATIONS WILL BE PROPOSED FOR 2011 CONSISTENT WITH THE NEW GUIDANCE
SUMMARY OF KEY POINTS
The Agencies will assert jurisdiction over:
The following waters are subject to CWA jurisdiction if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate waters:
The following aquatic areas are generally not subject to Clean Water Act jurisdiction as waters of the United States:
“in some cases the lack of hydrologic connection would be a sign of the water’s function in relationship to the traditional navigable or jurisdictional water, such as retention of flood waters or pollutants that would otherwise flow downstream to the traditional navigable or interstate water”