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Guidance Early Version

Guidance Early Version

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Published by: Washington Bureau on Aug 15, 2012
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07/10/2013

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Privileged
and
Confidential
Attorney-client PrivilegedMEMORANDUM
RE:
Clean Water Act Jurisdiction Following Rapanos v. United StatesFROM:TO:The purpose of this memorandum is to provide guidance
to
EPA regions and Corps ofEngineers districts regarding the impact of the Supreme Court's decision in the consolidatedcases Ra~anos
.
united States and Carabell v. United States (hereinafter "Rapanos") onjurisdiction over waters of the United States under the Clean Water Act, 33 U.S.C.
5
1251
a=.
BackgroundCongress enacted the Clean Water Act ("CWA" or "the Act") "to restore and maintainthe chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C.
5
1251(a).One of the mechanisms adopted by Congress to achieve that purpose is a prohibition on thedischarge of any pollutants, including dredged or fill material, into "navigable waters" except incompliance with other specified sections of the Act. 33 U.S.C.
$5
131 (a), 1362(12)(A). Inmost cases, this means compliance with a permit issued pursuant
to
CWA
$5
402 or 404. TheAct defines the term "discharge of a pollutant"
as
"any addition ofany pollutant
to
navigablewatersfrom any point source[J" 33 U.S.C.
5
1362(12)(A), and provides that "[tlhe term'navigable waters' means the waters of the United States, including the territorial seas." 33U.S.C.
$
1362(7); see also 33 C.F.R
5
328.3(a) and 40 C.F.R.
5
230.3(s).In Rapanos v. United States, 126 S. Ct. 2208 (2006), the Supreme Court addressed theiurisdictional scooe of the Clean Water Act. s~ecificallvhe terms "navigable waters" and
,
.
-
"waters of the United States." The justices issued five opinions in Rapanos (one pluralityopinion, two concurring opinions, and two dissenting opinions), with no single opinion
-.
commanding a majoiity of the Court.The Rapanos DecisionFour justices, in a plurality opinion authored by Justice Scalia, rejected the petitioners'position that the term "waters of the United States" is limited to only those waters that arenavigable in the traditional sense and their abutting wetlands.
Id,
t 2220. However, theplurality concluded that the agencies' regulatory authority should extend only to "relativelypermanent, standing or continuously flowing bodies of water" connected to traditional navigablewaters, and
to
"wetlands with a continuous surface connection to" such relatively permanentwaters.
Id.
t 2225-26.
I
 
Privileged and ConfidentialAttorney-client Privileged
Justice Kennedy did not join the plurality's opinion but instead authored an opinionconcurring in the judgment vacating and remanding the cases to the Sixth Circuit Court ofAppeals.
Id.
at 2236-52.' Justice Kennedy agreed with the plurality that the statutory term"waters of the United States" extends beyond water bodies that are traditionally considerednavigable.
Id.
t 2241. Justice Kennedy, however, found the plurality's interpretation of thescope of the CWA to be "inconsistent with the Act's text, structure, and purpose[,]" and heinstead presented a different test for evaluating CWA jurisdiction over wetlands.
Id.
t 2246.Justice Kennedy concluded that "wetlands" are "waters of the United States" "if the wetlands,either alone or
in
combination with similarly situated lands in the region, significantly affect thechemical, physical, and biological integrity of other covered waters more readily understood as'navigable.' When, in contrast, wetlands' effects on water quality are speculative orinsubstantial, they fall outside the zone fairly encompassed by the statutory term 'navigablewaters."'
Id.
t 2248.2Four justices, in a dissenting opinion authored by Justice Stevens, concluded that EPA'sand the Corps' interpretation of "waters of the United States" was a reasonable interpretation ofthe Clean Water Act.
Id.
t 2252-65.3When there is no majority opinion in a Supreme Court case, controlling legal principlesmay be derived from those principles espoused by five or more justices.
See
Marks v. United
m,
30
U.S.
188, 193-94 (1977); Waters v. Churchill, 511 U.S. 661,685 (1994) (Souter, J.,concurring) (analyzing the points of agreement between plurality, concurring, and dissentingopinions to identify the legal "test
...
hat lower courts should apply," underm,as theholding ofthe Court);
cf.
League of United Latin American Citizens v. Perrv, 126 S. Ct. 2594,2607 (2006) (analyzing concurring and dissenting opinions in a prior case to identify a legalconclusion of a majority ofthe Court); Alexander v. Sandoval, 532 U.S. 275,281-282 (2001)(same).
Thus,
regulatory jurisdiction under the CWA exists over a water body if either theplurality's or Justice Kennedy's test is satisfied. 126 S.Ct at 2265 (Stevens,
J.,
dissenting)rLGiven hat all four justices who have joined this [dissenting] opinion would uphold the Corps'jurisdiction in both of these cases
-
and in all other cases in which either the plurality's or Justice
'
While Justice Kennedy concurred in the Court's decision to vacate and remand the cases to theSixth Circuit, his basis for remand was limited to the question of "whether the specific wetlandsat issue possess a significant nexus with navigable waters." 126 S.Ct. at 2252. In contrast, theplurality remanded the cases to determine both "whether the ditches and drains near eachwetland are 'waters,"'& "whether the wetlands in question are 'adjacent' to these 'waters' inthe sense of possessing a continuous surface connection
...."
Id.
t 2235.Chief Justice Roberts wrote asepaiate concurring.opinion explaining his agreement with theplurality. 126 S.Ct. at 2235-36.
'
Justice Breyer wrote a separate dissenting opinion explaining his agreement
with
JusticeStevens' dissent. 126 S.Ct. at 2266.
 
Privileged
and
ConfidentialAttorney-client Privileged
Kennedy's test is satisfied
-
on remand each of the judgments should be reinstated if ofthose tests is met."). Since Rapanos, the United States has filed pleadings in a number of casesinterpreting the decision in this manner.The agencies are issuing this guidance in recognition of the fact that EPA regions andCorps districts need immediate guidance to ensure that jurisdictional determinations, permittingactions, and other relevant actions are consistent with the decision and supported by theadministrative record. Therefore, the agencies have evaluated the Rapanos opinions to identifythose waters that are subject to CWA jurisdiction under the reasoning of a majority of thejustices.Aeencv ~uidance~In order
to
provide clarity for Agency staff, regulated parties, states administering the CWA, andthe public, and to ensure that jurisdictional determinations, administrative enforcement actions,and other relevant agency actions are consistent with the Rapanos decision, EPA and the Corpsof Engineers are providing guidance addressing waters over which the agencies will assertjurisdiction under section 404 of the Clean Water ~ct.'Specifically, the agencies are in today'sguidance identifying those waters over which they will assert jurisdiction categorically and on acase-by-case basis, based on the reasoning of the Ra~anospinions.6 EPA and the Corps willThe CWA provisions and regulations described in this document contain legally bindingrequirements. This guidance does not substitute for those provisions or regulations, nor is it aregulation itself. It does not impose legally binding requirements on EPA, the Corps, or theregulated community, and may not apply to a particular situation depending on thecircumstances. Any decisions regarding a particular water will be based on the applicablestatutes, regulations, and case law. Therefore, interested persons are free to raise questions aboutthe appropriateness of the application ofthis guidance to a particular situation, and EPA andforthe Corps will consider whether or not the recommendations or interpretations of this guidanceare appropriate in that situation based on the statutes, regulations, and case law.
'
This guidance focuses only on those provisions of the agencies' regulations at issue in Ra~anos
-
3 C.F.R
5s
328.3(a)(l), (a)(5), and (a)(7); 40 C.F.R.
45
230.3(~)(1), s)(5), and (s)(7). Thisguidance does not address or affect other subparts ofthe agencies' regulations relevant to thescope of jurisdiction under the CWA. In addition, because this guidance is issued by both theCorps and EPA, which jointly administer CWA
5
404, it does not discuss other provisions of theCWA, including
§§
31 1 and 402, that differ in certain respects from
6
404 but share thedefinition of "waters ofthe United States." EPA is considering whether to provide additionalguidance on these and other provisions of the CWA that may be affected by the Rapanosdecision.
In
2001, the Supreme Court held that use of "isolated" non-navigable intrastate waters bymigratory birds was not by itself a sufficient basis for the exercise of federal regulatoryjurisdiction under the CWA.Solid Waste Aeencv of Northern Cook County (SWANCC) v.
3

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