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New Guidance on Clean Water Act Jurisdiction

Developers and landowners considering affecting waters and wetlands should take note.  In June, the Army Corps of Engineers and the Environmental Protection Agency issued guidance on how they intend to interpret which waters and wetlands constitute "waters of the United States" regulated under the Clean Water Act in light of last summer's U.S. Supreme Court decision in Rapanos v. United States.  The Rapanos decision examined the Corps' jurisdiction under § 404 of the CWA to regulate the filling of wetlands based on their adjacency or hydrologic connection to upstream ditches and drains which are connected to eventually navigable water systems.  A divided Court concluded the Corps cannot regulate such remote wetlands solely on the basis of adjacency or hydrologic connection, but must show, instead, that the wetlands have a "significant nexus" to downstream navigable waters or their permanently flowing tributaries.  Available online at http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html, the Guidance explains the agencies' interpretation of their jurisdiction over tributaries and adjacent wetlands and how they intend to apply the "significant nexus" test. 

          The agencies intend to continue asserting jurisdiction over:

• Traditional navigable waters ("all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide"), such as the Colorado River;
• All other waters determined to be navigable-in-fact, such as the intrastate Great Salt Lake;
• Relatively permanent non-navigable tributaries of traditional navigable and navigable-in-fact waters; and
• Wetlands that directly abut all such navigable waters and their relatively permanent tributaries.

          In Utah, this means the agencies will definitely continue to assert jurisdiction over the Colorado River and the Great Salt Lake, all their relatively permanent flowing tributaries, and all the wetlands that directly abut such waters and tributaries.

          The agencies also intend to assert jurisdiction over the following waters on a case-by-case basis if the waters have a "significant nexus" to a traditional navigable or navigable-in-fact water:

• Non-navigable tributaries that are not relatively permanent,
• Wetlands adjacent to non-navigable tributaries that are not relatively permanent, and
• Wetlands that are adjacent to but do not directly abut a relatively permanent non-navigable tributary.

          In analyzing whether a "significant nexus" exists, the agencies will consider hydrologic and ecologic factors and will assess the flow characteristics and functions of the tributary and assess the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters.  Thus, even if a particular adjacent wetland has only a minimal nexus in its own right, the agencies intend to consider it jurisdictional, if all wetlands adjacent to that tributary have a significant nexus in the aggregate.

          The agencies will generally not assert jurisdiction over the following waters:

• Swales or erosional features, such as gullies and small washes, that exhibit flow which is low in volume, infrequent or of short duration, and
• Ditches, including roadside ditches, which are excavated wholly in and drain only uplands and do not carry a relatively permanent flow of water.

         In the arid West, however, the Guidance recognizes that many washes, gullies and drainages which are dry for most of the year and do not carry a relatively permanent flow of water, will nevertheless still be subject to CWA jurisdiction, because they have a significant nexus to downstream regulated waters, such as the Great Salt Lake or the Colorado River.

         The guidance only addresses the interpretation of the term "waters of the United States" under § 404 of the CWA and expressly reserves judgment on how it will be interpreted under other provisions of the CWA, such as § 402 regulating discharges of pollutants from point sources into regulated waters.  Ditches, drains or gullies that may not be considered regulated waters for purposes of the Corps' jurisdiction under § 404 may nevertheless constitute point sources if they empty into regulated waters.  Thus, anyone who discharges pollutants into tributary ditches, drains or gullies may need to obtain a discharge permit from the Utah Division of Water Quality or the EPA.

The new Guidance only applies to the jurisdictional status of tributaries of navigable waters and adjacent wetlands and does not address or change prior guidance on isolated, wholly intrastate, non-navigable waters.  The jurisdictional status of these isolated waters remains problematic despite the 2001 decision of the United States Supreme Court in SWANCC v U.S. Army Corps., which precluded the Corps from asserting jurisdiction over such waters solely on the basis they provided habitat for migratory birds.  The agencies' regulations continue to extend jurisdiction to such isolated waters if their use, degradation or destruction could affect interstate or foreign commerce, because the waters are used for recreation by interstate or foreign travelers, for harvesting fish or shellfish sold in interstate commerce, or for industrial purposes by industries engaged in interstate commerce (e.g., salt evaporation).  Guidance issued in 2003 indicated the Corps will evaluate such waters on a case-by case basis and assert jurisdiction only with approval of Corps Headquarters.

          Although the Guidance offers insight into how the agencies intend to apply the "significant nexus" test, it offers no bright line test for determining the jurisdictional status of non-permanent flowing tributaries of the Colorado and Great Salt Lake, or the wetlands, mudflats, and other special aquatic areas that are adjacent to such tributaries, or those isolated waters and wetlands that are not somehow connected or adjacent to the Colorado River, Great Salt Lake or their tributaries.  The jurisdictional status of these waters and wetlands will continue to be determined by the Corps on a case-by-case, fact-specific basis.  Landowners and developers seeking to fill or clear such areas will do so at their risk, unless they first obtain a favorable jurisdictional determination or 404 permit from the Corps.

Michael Keller Chairs the Environmental, Natural Resources, and Energy Practice Group at the Van Cott law firm.  He can be reached at (801) 237-0287or at mkeller@vancott.com.