Joint Corps/EPA Draft Guidance on Identifying Waters of the U.S.
05.03.11 9:25 AMThe United States Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) yesterday (May 2, 2011) issued their long expected “Draft Guidance (the "Guidance") on Identifying Waters Protected by the Clean Water Act” The draft was “leaked” when it was sent to OMB for review on December 20, 2010. Very little, if anything, changed after OMB review. The guidance is markedly different in style from the 2008 guidance jointly issued by both the EPA and the Corps. The new guidance seems to create Waters of the United States by the pen rather than through nature. According to the Guidance:
The 2008 Rapanos guidance 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. . . . Therefore, the agencies expect that the number of water found to be subject to the CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.
The interesting comparison is between the words "narrowly" and "more faithful." Justice Kennedy intended his opinion to narrow the range by eliminating reliance on "any hyrdologic connection" and requiring signficant nexus to a traditional navigable water. The most significant substantive change in the revised guidance is the broad and expansive definition given to “traditional navigable waters" (“TNWs”). Both the Scalia test and the Kennedy test rely heavily on the location of a water in relation to a TNW. The scion of jurisdictional TNW cases is the famous test established by the Court in Daniel Ball, 77 U.S. 557 (U.S. 1871). According to the Daniel Ball test:
Rivers are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.
And they constitute navigable waters of the United States . . . when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.
The Guidance does not quote from the Daniel Ball test (which is still good law); rather, it relies on dicta from U.S. v. Appalachian Elec. Power Co., 311 U.S. 377, 406(1940) in which he Court stated that “[N]avigability is a flexible concept and [e]ach application of the [Daniel Ball test] is apt to uncover variations and refinements which require elaboration." The Guidance sets out five tests for determining whether a water is a TNW:
- · They are subject to Section 9 or 10 of the Rivers and Harbors Act, or
- · A federal court has determined it to be navigable in fact under federal law; or,
- · They are waters currently used for commercial navigation, including waterborne recreation; or
- · They have historically been used for commercial navigation including commercial waterborne recreation; or,
- · They are susceptible to being used in the future for commercial navigation, including commercial waterborne recreation.
A water meeting any one of these five tests is therefore a TNW. The breadth of commercial waterborne recreation cannot be overstated. The Guidance states “a likelihood of future commercial navigation, including commercial waterborne recreation, can be demonstrated by current boating or canoe trips for recreation or other purposes.” Citing FPL Energy Marine Hydro LLC v. FERC, 287 F.3d 1151, 1157 (D.C.Cir. 2002), “a trip taken solely for the purpose of demonstrating a waterbody can be navigated would be sufficient. . . . Actual use is not necessary for a navigability determination” In the FPL case, according the Guidance, the navigability determination was upheld based on three experimental canoe trips conducted only for the purpose of determining navigability. The stream had five sets of rapids, had never been used for commercial traffic or recreational use, and was only floated for proof in the litigation.
One of the Daniel Ball’s key tests, that the water must be a continued highway over which commerce is or may be carried on with other States, is ignored for TNW purposes. Thus, government will consider a stream a TNW which is totally an intrastate water.
The breadth of the TNW determination drives much of the rest of the guidance. To evaluate the presence or absence of a significant nexus, the agencies intend to, as a general matter, consider:
(1) Waters to be “similarly situated” with waters of the same resource type, specifically (a) tributaries; (b) adjacent wetlands; or (c) other waters that are in close physical proximity to traditional navigable waters, interstate waters, or their jurisdictional tributaries (“proximate other waters”);
(2) Waters to be “in the region” if they fall within the same watershed. For the purposes of this analysis, the watershed is defined by the area draining into the traditional navigable water or interstate water; and
(3) Waters to have a significant nexus if they alone or in combination with other similarly situated waters in the same watershed have an effect on the chemical, physical, or biological integrity of traditional navigable waters or interstate waters that is more than “speculative or insubstantial.”
Thus, under the expanded interpretation of TNW, nearly every channel that has flow for any period of time becomes a water of the U.S. because of its proximity to the "more faithful" interpretation of what constitutes a TNW. Note that the evaluation is based on the significant nexus:
Field staff should determine the watershed, as defined by the areas draining into the nearest traditional navigable water or interstate water, and should identify the “similarly situated” waters in that watershed. The logical and scientifically valid "region" for determining whether similarly situated waters have a significant nexus is the watershed that drains to the nearest traditional navigable water or interstate water through a single point of entry (emphasis supplied).
There are many local creeks and streams that at flood stage can be kayaked. Some others even with perennial flow barely would support canoeing or kayaked. This differs remarkably from the previous guidance. For example, take the case of Nashville. The Harpeth River is a Section 10 TNW. However, there are numerous perennial small tributaries flowing into it. The Little Harpeth for example, would become a TNW. Thus, the test is not significant nexus to the Harpeth but the Little Harpeth. But wait. During flood stage some of the other tributaries could be floated. Thus much smaller streams become TNW’s. Under the guidance the focus is on the affect to TNW’s even if very small. The result is nearly every conceivable watercourse will be waters of the United States.
EPA estimates that the annual Increased Wetlands Mitigation is 2,517 acres and the annual Increased Stream Mitigation: 9.3 miles.
Of course, the Guidance also addresses wetlands that have a continual surface connection to a TNW or that have a signficant nexus to a TNW. That test, too, is higly dependent on the "more faithful" interpretation of TNWs. The guidance is very detailed in assisting the how significant nexus and other tests will be determined; however with the emphasis on TNWs, the next case reaching the Supreme Court will likely squarely address whether the "more faithful" TNW interpretation violates the Commerce Clause.
EPA will continue to use its 2003 and 2008 guidance pending review of comments. Comments may be submitted through July 1, 2011. The Federal Register notice provides details on how to comment. EPA stresses that this guidance is not a rule. The White House Concil on Environmental Quality has an informative WEBSITE that has more information. More to come as the details become clearer through study of the proposal.
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