EPA and Army Corps Propose to Clear the Mud Stirred Up by Rapanos

In 2006, the U.S. Supreme Court created great confusion in Rapanos v. United States over what wetlands fell within the coverage of the Clean Water Act (CWA) by setting out two separate tests for jurisdiction, one in the four-justice plurality opinion led by Justice Scalia, and one in a separate concurrence by Justice Kennedy. In an attempt to resolve the confusion, the Environmental Protection Agency (EPA) and the Army Corps of Engineers jointly released a draft rule. The rule is intended to clarify what streams and wetlands are covered by the Clean Water Act.

Justice Scalia’s plurality opinion in Rapanos, took a “wet” view of “waters of the United States,” restricting that term to “relatively permanent” water bodies that formed “geographic features.” Wetlands, under this test, fall within the statute’s scope only if they have “a continuous surface connection” to such bodies of water. By contrast, Justice Kennedy’s “dry” test construed the statute to cover any wetlands that have a “significant nexus” with “waters of the United States, i.e., that the wetlands, alone or in combination with similar lands in the region, significantly affect the chemical, physical, and biological integrity of covered waters. The main difference between the opinions is that Justice Scalia’s version focuses on the “wetness” and physical surface connection, while Justice Kennedy’s version focuses on the connection of other forces that affect waters, such as fauna, flora and chemical relationships. Thus under Justice Scalia’s definition, an isolated wet area near a stream that is waters of the United States would not be covered, notwithstanding bog turtles making their home in there and relying on the stream as part of their ecosystem. Justice Kennedy’s view would find the ecology of the bog turtle to be enough of a connection.

The proposed rule leans more towards Justice Kennedy’s definition. It covers the “regulated waters” as defined in CWA regulations and adds tributaries, impoundments and wetlands adjacent to those waters. In addition, it adds that on a case by case basis, the definition of “jurisdiction waters” can include those waters with a significant nexus to traditional navigable waters, interstate waters, or the territorial seas as consistent with the current science, the CWA, and the caselaw.

The proposed rule leaves intact the various agricultural exemptions and exclusions. The rule is supported by a draft scientific assessment by EPA titled, Connectivity of Streams and Wetlands to Downstream Waters, which presents a review and synthesis of more than 1,000 pieces of scientific literature. The rule will not be finalized until the final version of this scientific assessment is complete.

Members of the public will be able to comment on the proposed rule for 90 days after it is published in the Federal Register under Docket No. EPA-HQ-OW-2011.0880.