I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I am not normally a fan, this new version seems an appropriate use of guidance.
First, it is not a unilateral effort to expand agency jurisdiction. Instead, it responds to the Supreme Court Rapanos decision. Given the lack of a majority decision, Rapanos certainly left both regulators and the regulated community scratching their heads. Moreover, although one of my concerns about guidance is that it can ossify, that is not the case here. The new guidance replaces EPA’s prior Rapanos guidance, issued in 2008. EPA is entitled to conclude that the prior guidance did not accurately reflect the limits of CWA jurisdiction after Rapanos.
Significantly, in response to substantial pre-issuance pressure to shelve the guidance and instead pursue notice and comment rulemaking, EPA and the Corps have agreed both to take comment on this guidance and to undertake formal rulemaking. Thus, the guidance will serve only to clarify EPA’s and the Corps’ current interpretation pending issuance of a rule.
On the merits, the guidance seems to be a reasonable interpretation of Rapanos. Everyone knows that Justice Kennedy’s “significant nexus” test is not a model of clarity – that’s why guidance is appropriate. Regulated industries benefit from greater clarity – even if more wetlands will be found to be jurisdictional – because uncertainty imposes its own costs. While the American Farm Bureau Federation has already complained about the new guidance, I think we need to distinguish between complaints about the guidance per se and complaints which really go to the scope of the CWA itself.
If the guidance itself is too long for you, EPA has provided a useful summary. The summary of the summary? The following waters are protected by the Clean Water Act:
- Traditional navigable waters
- Interstate waters
- Wetlands adjacent to either traditional navigable waters or interstate waters
- Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally
- Wetlands that directly abut relatively permanent waters
In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a "significant nexus" to a traditional navigable water or interstate water:
- Tributaries to traditional navigable waters or interstate waters
- Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
- Waters that fall under the "other waters" category of the regulations. The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.