(94b) Clean Water Act Section 404: Jurisdictional Determinations and Nationwide Permits

Summary of Presentation

The presentation will begin with a brief introduction of Section 404 of the Clean Water Act (CWA) then move into a general overview of the controversy related to jurisdictional determinations made by the United States Army Corps of Engineers (Corps). A discussion of the Rapanos decision will be included, as well as the jurisprudential attempts to clarify the Rapanos decision and the current status of the Corps' guidance.

Additionally, a general overview of Nationwide Permits (NWPs) will be provided which will consist of a discussion of modifications recently made to existing NWPs and General Conditions, as well as a summary of new NWPs and General Conditions.

Issues Addressed

Section 404 of the Clean Water Act (CWA) regulates the discharge of dredged or fill material into navigable waters. The United States Army Corps of Engineers (Corps) has the responsibility of administering Section 404. The Corps' authority includes determining whether the proposed activity will have potentially significant impacts to navigable waters. One facet of this evaluation is the jurisdictional determination of whether the proposed activity will impact navigable waters. Another facet is determining whether the activity itself will have significant adverse effects.

Jurisdictional Determinations

Although the term ?navigable waters? was defined within the statute as ?waters of the United States, including the territorial seas,? this definition has not proved to be of much help in determining what Congress meant to provide the Corps in the way of jurisdiction.

Defining ?waters of the United States? was a task left to the Corps, to be carried out through notice and comment rulemaking. When the Corps published its definition of ?waters of the United States,? it did so with the intent of following what it believed to be a Congressional mandate to give the term the broadest constitutional interpretation.

Current regulations define ?waters of the United States? to include interstate wetlands, tributaries to wetlands, and wetlands that are adjacent to otherwise included waters and tributaries. The Corps further defined the term ?adjacent wetlands? to be wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like. This extension of Corps jurisdiction was the source of much angst for property owners and consequently, much litigation.

In 2006, the United States Supreme Court heard oral arguments in the consolidated cases of John A. Rapanos v. United States and June Carabell v. United States Army Corps of Engineer (herein referred to as Rapanos). Rapanos provided the Supreme Court with an opportunity to settle the disputes involving the Corps' jurisdiction over ?adjacent wetlands? as defined in the regulations.

Much to the disappointment of those watching and waiting for a resolution to the issue of the Corps' jurisdiction, no such resolution was forthcoming. The decision split was 4-1-4, leaving the question of whether to follow the standard set forth by the plurality or the concurrence.

The standard presented by the plurality was that only those wetlands with a continuous surface connection to ?waters of the United States? in their own right, are adjacent to such waters and covered by the CWA. The decision states that ?waters of the United States? include only those relatively permanent, standing or continuously flowing bodies of water and that there should be no clear demarcation between such waters and those wetlands.

Justice Kennedy concurred in the judgment to remand, but rejected the reasoning set forth by the plurality. The standard presented in the concurrence requires the establishment of a ?significant nexus? on a case-by-case basis when the Corps seeks to regulate wetlands based on adjacency to nonnavigable tributaries.

Simply put, the Court failed to resolve the issue of Congressional intent when it granted the Corps jurisdiction of the Section 404 permitting program through the CWA.

The fallout of the Rapanos decision is unsettled as Circuit Courts attempt to apply the elusive Rapanos rule and the Corps attempts to provide guidance for implementing the Supreme Court's decision. The Ninth Circuit, for example, applied the narrowest common ground of reasoning in Kennedy's concurrence. The First Circuit, on the other hand, was not able to identify any common ground and held that the Corps should define its jurisdiction by applying the standard set out by the plurality or the concurrence.

To ensure that Section 404 jurisdictional determinations were consistent with the Rapanos decision, the U.S. Environmental Protection Agency (EPA) and the Corps issued guidance to the Corps District Offices implementing Section 404 permitting program.

Determination of Adverse Impacts

In addition to making a jurisdictional determination of whether the proposed activity will impact navigable waters, the Corps must also evaluate the potential effects of the proposed activity. If the proposed activity is determined to have potentially significant impacts on ?waters of the United States,? the applicant must obtain an individual permit.

If, however, the Corps determines that the proposed activity will result in only minimal adverse effects, then the applicant may comply with Section 404 by obtaining a general permit. General permits are issued on a nationwide basis and authorize activities that have minimal individual and cumulative adverse effects on navigable waters.

The Corps issues nationwide permits (NWPs) to simplify the review process and allow applicants to proceed with fewer delays. In addition to meeting the threshold requirements of a particular NWP, the activity must also comply with NWP General Conditions common to all activities as well as any applicable Regional Conditions designated by each Corps District Office.

In March of 2007, the Corps published a reissuance of NWPs. All existing NWPs and General Conditions remain in effect, though a number were issued with modifications. Additionally, there were six new NWPs and two new General Conditions.