Two weeks ago, we started our series of posts examining the Obama Administration’s final rule redefining the waters subject to federal jurisdiction under the Clean Water Act by looking at the bottom line, legally, of the waters now considered to be always jurisdictional. We then examined the waters that will probably be (and may be) jurisdictional, as well as a few of the ambiguities remaining in the final rule and some that were resolved by the agencies before finalization. Following two posts on changes we believe the Administration should have made but didn’t and one examining the practical reality of proving jurisdiction under the significant nexus test, today’s post is our last, and we’ll finish 180 degrees from our first one. That post looked at the legal bottom line; today we give you our view of the practical one.

Practically speaking:

• The range of automatically-jurisdictional waters is quite broad: waters are jurisdictional starting at interstate waters and waters useable for commerce (including the territorial seas), as far up their tributaries as there is an ordinary high water mark and a bed and bank and outward from that ordinary high water mark at least 100 feet (and up to 1,500 feet if in the FEMA 100-year floodplain). In addition, waters within 1,500 feet of a high tide line or the ordinary high water mark of a Great Lake are always jurisdictional.

• Added to this is the range of waters very likely to be jurisdictional:

  • Prairie potholes, located in the upper Midwest,

  • Carolina bays and Delmarva bays, that occur along the Atlantic coastal plain,

  • Pocosins, found predominantly along the Central Atlantic coastal plain,

  • Western vernal pools, located in parts of California, and

  • Texas coastal prairie wetlands, located along the Texas (and possibly western Louisiana) Gulf Coast.

• Then, there are all the waters that might be jurisdictional after application of the significant nexus test: all “similarly situated” waters located within:

  • 4,000 feet of the high tide line or ordinary high water mark of any other jurisdictional water (including dry tributaries).

  • The 100-year floodplain of a traditionally navigable or interstate water or the territorial seas.

• This latter test must be applied on a case-by-case basis, which can be burdensome to do, particularly for large projects, requiring, at a minimum:

  • Identification of the nearest traditionally navigable or interstate water or territorial sea.

  • Identification of other potentially similarly situated waters, most of which will not be on the applicant’s property, and so probably require identification using aerial photos.

  • Determination of the size and function of these photographically-identified, similarly-situated waters (and confirmation they are actually similarly situated), possibly through obtaining access rights to the property of neighbors in the region.

  • Hiring a contractor to prepare a report summarizing all of the above, possibly with the assistance of an attorney, given the complexity of the rule being applied

(and this burden falls on the regulated entity, not the agencies)

• The process of identifying nonjurisdictional waters will still require:

  • Negotiating with the Corps and then with EPA about the scope of waters not subject to jurisdiction (a process which culminates in the issuance of a jurisdictional determination, which the agencies argue is not reviewable in court).

  • The possible defense of this determination from third-party challenges by project opponents.

• We believe that there not is a great likelihood that going through this process will result in the Agencies identifying the waters at issue – those within the 4,000-foot zone – as nonjurisdictional. While the actual probability will be seen over time as the Agencies make such decisions, a good yardstick is the Agencies’ view of the significance of the 100-year floodplain to making a “significant nexus” determination:

Recall that there are two zones in which the Agencies have determined – based on their significant nexus – that waters outside of a tributary’s ordinary high water mark are always jurisdictional. These zones are (1) 100 feet regardless of floodplain and (2) up to 1,500 feet if within the 100-year floodplain. The difference between these two zones is obviously that the latter is up to 15 times as far away but connected to the tributary by floodwaters approximately once every 100 years. Put another way, the Agencies believe that a one percent chance of a floodplain connection in any given year is sufficient for a water to have a “significant nexus” despite the fact that the water is up to 15 times farther away than other “always-jurisdictional” waters. This is a very expansive view of what connections create a significant nexus and, if any guide to the Agencies’ application of the significant nexus test, means that the Agencies will determine that most waters have such a nexus.

Thus, given the time and expense of the process, the risk of litigation challenges and the relatively limited scope of waters likely to be excluded from jurisdiction, we believe many applicants will choose not go through the process, instead conceding jurisdiction and moving forward with permitting all wetlands and waters on their property, jurisdictional or not.

This will result in fewer applicants able to obtain nationwide permits (which require much less process and processing to obtain) and more applicants requiring individual permits. With every individual permit comes the need for the Corps to consult with the US Fish and Wildlife Service under the Endangered Species Act and comply with the National Environmental Policy Act. All of which takes time and money for the applicant and resources from the Corps. Without additional funding and personnel (which are very unlikely to come), the permitting process will take longer (and draw resources away from enforcement, which is another blog for another day.)

So the practical reality is that the final rule brings us close to the pre-SWANCC days, when almost all waters were subject to federal jurisdiction. It’s a very broad interpretation of the Clean Water Act, perhaps not actually supported by the Act or consistent with a decade of Supreme Court precedent. It brings more cost and delay to the process. But, for the regulated community, at least it’s predictable.