Recently posted by Linda H. Bochert of Michael Best & Friedrich LLP – details about the recent draft guidance issued about when a wetland is subject to federal jurisdiction: 
Five years after the US Supreme Court issued the decision that was supposed to – but didn’t – clarify when a wetland is subject to federal jurisdiction, the United States Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) are seeking public comment on draft guidance intended to explain how such decisions are to be made.
The Draft Guidance on Federal Jurisdiction
On April 27, 2011, EPA and the Corps issued “Draft Guidance on Identifying Waters Protected by the Clean Water Act” (“Draft Guidance”). The Draft Guidance interprets two key Supreme Court decisions, often referred to as Rapanos and SWANCC. Rapanos is the 2006 Supreme Court decision in the consolidated cases of Rapanos v. United States and Carabell v. United States Army Corps of Engineers, 547 UW 715 (2006); SWANCC is the 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001). The Draft Guidance addresses both wetlands and waterbodies and is limited to whether the federal Clean Water Act applies; it does not determine what state laws or regulations might apply.
After years of confusion, the 2006 decision in Rapanos was widely anticipated to provide a clear test for when a wetland is subject to federal jurisdiction. It failed to do so. The court split three ways, with no point of view supported by a majority of the justices. The prevailing view since Rapanos has been that a wetland is subject to federal jurisdiction if it satisfies either of two tests: 1) the wetland must be immediately adjacent to a navigable body of water that has a relatively permanent flow; or 2) there is a “significant nexus” between the wetland and a body of water that was, is, or could be made navigable. But stating the tests and applying them are two different things – and application of that two-part test has been anything but clear-cut. For more on Rapanos andSWANCC, see our June 29, 2006 Client Alert: Wetlands and Water Bodies Must Have “Significant Nexus” with a Navigable Water to Fall Under the Jurisdiction of the Clean Water Act.
The EPA and the Corps are taking another run at it. The Draft Guidance is carefully described as “consistent with Supreme Court decisions and existing agency regulations” – presumably to combat anticipated criticism that it either overreaches or underreaches the current state of the law, although the critics have already begun to weigh in.
Under the Draft Guidance, federal jurisdiction would apply to wetlands that:
- are adjacent to either traditional navigable waters or interstate waters
- directly abut relatively permanent waters
- are adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters if there is a “significant nexus”
And federal jurisdiction would apply to waterbodies that are:
- traditional navigable waterbodies
- interstate waterbodies
- non-navigable tributaries to traditional navigable waters that are relatively permanent (contain water at least seasonally)
- tributaries to traditional navigable waters or interstate waters if there is a “significant nexus”
- in the category of “other waters” – including some that are physically proximate to other jurisdictional waters and some that are not, based on fact specific circumstancesFollowing the 60-day public comment period, EPA and the Corps intend to finalize the Guidance and then initiate formal rulemaking. The message of that process is that the agencies want to identify as much of the anticipated controversy about their interpretation as possible before drafting a federal regulation implementing that interpretation.
Effect in Wisconsin
Implementation of the Draft Guidance is not likely to have a significant impact in Wisconsin. As far as waterbodies are concerned, Wisconsin has historically taken a broad view of navigability for purposes of state jurisdiction. With respect to wetlands, as explained in our June 2006 Client Alert following the SWANCC decision the Wisconsin Legislature extended the jurisdiction of the Wisconsin Department of Natural Resources (“WDNR”) to include “nonfederal wetlands”. Wis. Stat. §. 281.36(1m). Thus, a nonfederal wetland may still be subject to state water quality standards and permit requirements implemented by WDNR, even if it does not come within federal jurisdiction under the Clean Water Act.
The Clean Water Framework
The Draft Guidance is part of the Obama Administration’s national Clean Water Framework also released on April 27, 2011. The Clean Water Framework “recognizes the importance of clean water and healthy watersheds to our economy, environment and communities” and is composed of the following initiatives:
- promoting innovative partnerships
- enhancing communities and economies by restoring important water bodies
- innovating for more water-efficient communities
- ensuring clean water to protect public health
- enhancing use and enjoyment of our waters
- updating the nation’s water policies – this initiative includes the Draft Guidance
- supporting science to solve water problems
