EPA and the Army Corps of Engineers continue their ongoing effort to bring clarity to the tangled mess wrought by the Supreme Court in Rapanos v. U. S.  In that 2006 case, a fractured Court issued five separate opinions on the jurisdictional reach of the Clean Water Act.  Congress didn’t help in the first place by extending such jurisdiction to “navigable” waters, defined in the Act as “waters of the United States” without further elucidation.  EPA and the Corps have developed new rules  now under review by the Office of Management and Budget prior to release for public comment.

The agencies and the courts have long struggled with a workable definition of “waters of the United States,” particularly in the context of filling wetlands.  The Supreme Court previously held that wetlands adjacent to navigable waters are jurisdictional because of their ecological connection to those waters, but isolated wetlands in the Pacific Flyway are not.  In Rapanos, a four member plurality in an opinion by Justice Scalia limited jurisdiction to areas that are wet with flowing or standing water on a more or less regular basis, which would exclude many areas that appear dry but meet the agency definition of wetlands.  The determinative fifth vote, however, was from Justice Kennedy, who applied a different test, requiring only a “significant nexus” between the navigable waterways and the wetland.

Since Rapanos, many courts have been unable to discern guiding precedent and adopted hybrids of the Scalia and Kennedy tests.  In the meantime, the agencies on two occasions have adopted guidance to help permit writers and the regulated community recognize jurisdictional wetlands.  The agencies’ latest effort would go beyond guidance to rules having the force of law.

The rules define jurisdictional waters of the United States to include categories of wet areas, such as tributaries of navigable waterways.  The rules would exclude drainage ditches excavated on uplands or other artificially wet areas, such as waste treatment systems or irrigated lands.  The expectation is that by establishing by rule categories of jurisdictional waters that per se have a significant nexus to navigable waters, the cost of permitting and litigation would decrease, while certainty for land developers would increase.

The rules are based on a report by EPA staff that compiles and synthesizes peer-reviewed scientific research on the relationship between tributaries, wetlands and open waters.  The report is under review by EPA’s Science Advisory Board, and EPA has said the rules would not be released for public comment until that review is complete.

Still, the fact that the rules were developed before the report and Science Advisory Board review are complete has drawn criticism from Congressional Republicans.  They charge that the report is just window dressing for EPA doing what it wants.  In a letter dated November 13 to EPA, the Senate and House Western caucuses urge EPA to withdraw the rule “based on the devastating economic impacts that a federal takeover of state waters would have.”

The prospect of having rules in place to define jurisdictional waters is, on its face, a positive development because of the uncertainty that now pervades this area.  However, in addition to Congressional resistance, the goal of avoiding litigation will likely prove elusive.  If challenged, the agencies will be entitled to a measure of deference once the rules are adopted, but we can safely predict there will be many challenges.

Once the rules clear OMB and the Science Advisory Board, they will be published for public comment.  Watch this space for updates.