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June 17, 2011

On April 27, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (USACE) issued their most recent guidance concerning the scope of waters regulated by the Clean Water Act (CWA).  The guidance is a response to relevant judicial rulings, especially two Supreme Court cases addressing CWA jurisdiction, and marks the most recent attempt by EPA and USACE to clarify the jurisdictional reach of the CWA.  This nonbinding guidance was issued in draft form, and EPA and USACE are accepting public comment on it until July 1, 2011.  According to the draft guidance, the EPA and USACE intend to take further steps to expand CWA jurisdiction through a formal rulemaking.  The next step, a proposed rule, will further clarify via regulation the extent of and standards for CWA jurisdiction.  EPA has not yet indicated exactly when it will begin the rulemaking process, but is not expected to start until the current draft guidance is finalized.

Although the guidance indicates an intent to expand jurisdiction under the CWA, it also maintains the existing regulatory exemption from CWA jurisdiction for manmade waste treatment systems.  The preservation of this regulatory exemption is an important victory for NACWA members and reflects the Association’s longstanding advocacy position on this important issue.  The NACWA Board of Directors previously supported a legislative effort that would have expanded CWA jurisdiction, but only as long as the waste treatment exemption remained in place and groundwater remained outside of the scope of jurisdiction.  The basis of this guidance document is in line with the Board’s previous position.

This Advocacy Alert will provide NACWA members with background information, a summary of the new guidance, potential implications for clean water utilities, and a request that members submit any comments on the guidance to NACWA by Friday, June 17.  Member comments, along with any questions regarding the guidance or this Advocacy Alert, may be directed to Nathan Gardner-Andrews, NACWA’s General Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202-833-3692.

Background

The CWA only regulates “navigable waters of the United States,” and so this term defines the scope of CWA jurisdiction.  Attempting to determine CWA jurisdiction has long been a complicated and contentious issue, leading to many court opinions, guidance documents, and rulemakings in an effort to determine its scope.  For instance, the 1985 U.S. Supreme Court opinion in United States v. Riverside Bayview Homes and numerous other court opinions approached CWA jurisdiction from an integrated perspective.  In viewing circumstances such as hydrologic cycles and aquatic systems as potential evidence of an effect on traditional navigable waters, the courts easily expanded CWA jurisdiction to include, for example, wetlands adjacent to traditional navigable waters, as in Riverside Bayview.

The Supreme Court’s first attempt to notably limit CWA jurisdiction occurred in 2001 with the case Solid Waste Agency of Northern Cook County (SWANCC)  v. Army Corps of Engineers.  In SWANCC, the Court focused on finding whether certain isolated ponds had an impact on navigable waters.  The Court found that isolated ponds cannot be regulated under the CWA solely on the basis of use of the ponds by migratory birds.  In an attempt to further clarify CWA jurisdiction, the Supreme Court in 2006 reviewed the case of Rapanos v. United States. The Court in Rapanos was unable to produce a majority opinion and thus created two different legal standards for determining CWA jurisdiction.  Under the plurality standard, to be regulated under the CWA, waters that are not traditionally navigable must have a relatively permanent connection to navigable waters, and specifically, adjacent wetlands must have a continuous surface connection to navigable waters.  Alternatively, under the standard proposed by Justice Kennedy in his concurring opinion, the CWA regulates waters that have a “significant nexus” with navigable waters such that they significantly affect the chemical, physical, and biological integrity of the navigable waters.

Not surprisingly, the lack of a majority opinion in Rapanos created even more confusion in identifying the appropriate scope of CWA jurisdiction.  The EPA and USACE, in an effort to try and clarify Rapanos, issued a  joint legal memorandum in December 2008 explaining that satisfying either of the two standards put forth in Rapanos is sufficient for CWA jurisdiction.  However, confusion has continued to exist on this issue, particularly with regard to applying the “significant nexus” test.  In order to further shed light on the issue of CWA jurisdiction, EPA and USACE issued the recent April guidance to replace the 2008 document.

Summary of Guidance

The guidance identifies and defines waters that are always under CWA jurisdiction, that may under some circumstances be under CWA jurisdiction, and that are generally not included within the scope of CWA jurisdiction.  Explanation of key terms clarifies the standard for waters that may or may not fall under CWA jurisdiction depending on circumstances, especially wetlands, tributaries, and isolated waters.

Specifically, the guidance first addresses jurisdictional waters, including traditional navigable waters, interstate waters, wetlands adjacent to navigable or interstate waters, non-navigable tributaries to navigable waters that are relatively permanent, and wetlands that directly abut relatively permanent waters.  The guidance next identifies waters that may be jurisdictional and waters that are not protected by the CWA, and suggests, as in the 2008 memorandum, that waters meeting either Rapanos standard will fall under CWA jurisdiction.  Waters that may be jurisdictional must have a “significant nexus” to, or effect on, navigable or interstate waters.  Such waters include tributaries to navigable or interstate waters, wetlands adjacent to jurisdictional tributaries to navigable or interstate waters, and all other waters that are proximate to and have a “significant nexus” to navigable waters.  The guidance defines “significant nexus” as an effect on the chemical, physical, and biological integrity of traditional navigable waters.  The guidance discusses the findings necessary to show adjacency, relative permanence of tributaries, and significant nexus.

The changes in scope of CWA jurisdiction as defined by the guidance fall into three broad categories.  The categories stem from the case law discussed above and identify waters about which the CWA is unclear.  First, traditionally navigable waters and their adjacent wetlands are jurisdictional.  Second, relatively permanent but non-navigable tributaries and their adjacent wetlands are jurisdictional.  Third, other tributaries and wetlands will be jurisdictional only if they have a significant nexus with traditional navigable waters.  Further, the guidance does not completely exclude isolated waters from CWA jurisdiction, but requires that they have a significant nexus to navigable waters.  Proof solely of migratory animal or bird use will not be sufficient to show such a nexus exists, in which case CWA jurisdiction does not extend.  However, the guidance takes a broader reading of what qualifies as a “significant nexus” than the 2008 document and suggests that this will result in additional determinations of CWA jurisdiction.

Most importantly for NACWA members, the guidance on page 3 indicates that the document is not intended to address or change the current regulatory waste treatment system exemption from coverage under the CWA.  Accordingly, those manmade water bodies that are used as part of the wastewater treatment process will continue to be exempt from CWA jurisdiction.   The waste treatment system exemption, found in Title 40, Section 122.2 of the U.S. Code of Federal Regulations (CFR), states that manmade bodies of water that are part of the wastewater treatment process are not jurisdictional waters under the CWA.  These exemptions include lagoons and ponds that are part of a waste treatment systems, as well as municipal wastewater collection systems.  NACWA has also confirmed with EPA that existing jurisdictional exemptions for municipal stormwater collection, conveyance and treatment systems prior to the permitted discharge point are not intended to be impacted by the proposed guidance and will also continue.

The guidance is silent on the issue of groundwater.  Traditionally, CWA jurisdiction has not extended to groundwater, and it is NACWA’s analysis that this guidance document is not intended to address groundwater and that groundwater will remain unaffected.  However, we will continue to monitor the expansion of the “significant nexus” standard as outlined in the guidance to determine if there are impacts on groundwater.

Implications for NACWA Members and Request for Comments

NACWA believes that this new guidance concerning CWA jurisdiction will likely not have a significant operational impact on NACWA members with existing National Pollutant Discharge Elimination System (NPDES) permits.  The continued existence of the regulatory waste treatment exemption means that wastewater and stormwater collection or treatment systems that are in place will be unaffected even if they include holding pools or ponds prior to a permitted discharge point.  However, NACWA members constructing additions to plants may be affected if construction projects result in abandoned, water-filled depressions that meet the definition of waters of the United, or the filling of wetlands or tributaries that are in, adjacent to, have a significant nexus with, or have a surface connection with traditional navigable waters.  If any NACWA members review the draft guidance and have concerns about potential operational impacts, please inform NACWA via the request for comments as outlined below.

NACWA will be providing comments to EPA on the draft guidance by July 1.  We request that NACWA members review the draft document and submit any comments or concern to NACWA by Friday, June 17.  Member comments can be directed to Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  Members are also encouraged to share their comments directly with EPA via the instructions found in the Agency’s Federal Register notice .