Privileged and Confidential

Attorney-client Privileged MEMORANDUM

RE:
FROM: TO:

Clean Water Act Jurisdiction Following Rapanos v. United States

The purpose of this memorandum is to provide guidance to EPA regions and Corps of Engineers districts regarding the impact of the Supreme Court's decision in the consolidated cases Ra~anos united States and Carabell v. United States (hereinafter "Rapanos") on v. jurisdiction over waters of the United States under the Clean Water Act, 33 U.S.C. 5 1251 a=. Background Congress enacted the Clean Water Act ("CWA" or "the Act") "to restore and maintain the 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 the discharge of any pollutants, including dredged or fill material, into "navigable waters" except in compliance with other specified sections of the Act. 33 U.S.C. $ 5 131l(a), 1362(12)(A). In most cases, this means compliance with a permit issued pursuant to CWA $5 402 or 404. The Act defines the term "discharge of a pollutant" as "any addition ofany pollutant to navigable waters from 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." 33 U.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 the the -iurisdictional scooe of the Clean Water Act., s~ecificallv terms "navigable waters" and . "waters of the United States." The justices issued five opinions in Rapanos (one plurality opinion, two concurring opinions, and two dissenting opinions), with no single opinion - . commanding a majoiity of the Court.
The Rapanos Decision Four 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 are navigable in the traditional sense and their abutting wetlands. Id,at 2220. However, the plurality concluded that the agencies' regulatory authority should extend only to "relatively permanent, standing or continuously flowing bodies of water" connected to traditional navigable waters, and to "wetlands with a continuous surface connection to" such relatively permanent I waters. Id.at 2225-26.

Privileged and Confidential Attorney-client Privileged

Justice Kennedy did not join the plurality's opinion but instead authored an opinion concurring in the judgment vacating and remanding the cases to the Sixth Circuit Court of Appeals. 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 considered navigable. Id.at 2241. Justice Kennedy, however, found the plurality's interpretation of the scope of the CWA to be "inconsistent with the Act's text, structure, and purpose[,]" and he instead presented a different test for evaluating CWA jurisdiction over wetlands. Id.at 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 the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.' When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term 'navigable waters."' Id.at 2248.2 Four justices, in a dissenting opinion authored by Justice Stevens, concluded that EPA's and the Corps' interpretation of "waters of the United States" was a reasonable interpretation of the Clean Water Act. Id. at 2252-65.3 When there is no majority opinion in a Supreme Court case, controlling legal principles may be derived from those principles espoused by five or more justices. See Marks v. United 430 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 dissenting that lower courts should apply," u n d e r m , as the opinions to identify the legal "test holding 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 legal conclusion 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 the plurality's or Justice Kennedy's test is satisfied. 126 S.Ct at 2265 (Stevens, J., dissenting) rLGiventhat 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

m,

...

While Justice Kennedy concurred in the Court's decision to vacate and remand the cases to the Sixth Circuit, his basis for remand was limited to the question of "whether the specific wetlands at issue possess a significant nexus with navigable waters." 126 S.Ct. at 2252. In contrast, the plurality remanded the cases to determine both "whether the ditches and drains near each wetland are 'waters,"'& "whether the wetlands in question are 'adjacent' to these 'waters' in the sense of possessing a continuous surface connection ...." Id. at 2235. Chief Justice Roberts wrote a sepaiate concurring.opinion explaining his agreement with the plurality. 126 S.Ct. at 2235-36.

'

'

Justice Breyer wrote a separate dissenting opinion explaining his agreement w t Justice ih Stevens' dissent. 126 S.Ct. at 2266.

Privileged and Confidential Attorney-client Privileged

Kennedy's test is satisfied - on remand each of the judgments should be reinstated if of those tests is met."). Since Rapanos, the United States has filed pleadings in a number of cases interpreting the decision in this manner. The agencies are issuing this guidance in recognition of the fact that EPA regions and Corps districts need immediate guidance to ensure that jurisdictional determinations, permitting actions, and other relevant actions are consistent with the decision and supported by the administrative record. Therefore, the agencies have evaluated the Rapanos opinions to identify those waters that are subject to CWA jurisdiction under the reasoning of a majority of the justices. Aeencv ~ u i d a n c e ~ In order to provide clarity for Agency staff, regulated parties, states administering the CWA, and the public, and to ensure that jurisdictional determinations, administrative enforcement actions, and other relevant agency actions are consistent with the Rapanos decision, EPA and the Corps of Engineers are providing guidance addressing waters over which the agencies will assert jurisdiction under section 404 of the Clean Water ~ c t . ' Specifically, the agencies are in today's guidance identifying those waters over which they will assert jurisdiction categorically and on a case-by-case basis, based on the reasoning of the R a ~ a n o opinions.6 EPA and the Corps will s The CWA provisions and regulations described in this document contain legally binding requirements. This guidance does not substitute for those provisions or regulations, nor is it a regulation itself. It does not impose legally binding requirements on EPA, the Corps, or the regulated community, and may not apply to a particular situation depending on the circumstances. Any decisions regarding a particular water will be based on the applicable statutes, regulations, and case law. Therefore, interested persons are free to raise questions about the appropriateness of the application ofthis guidance to a particular situation, and EPA andfor the Corps will consider whether or not the recommendations or interpretations of this guidance are appropriate in that situation based on the statutes, regulations, and case law.

- 33 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). This guidance does not address or affect other subparts ofthe agencies' regulations relevant to the scope of jurisdiction under the CWA. In addition, because this guidance is issued by both the Corps and EPA, which jointly administer CWA 5 404, it does not discuss other provisions of the CWA, including 31 1 and 402, that differ in certain respects from 6 404 but share the definition of "waters ofthe United States." EPA is considering whether to provide additional guidance on these and other provisions of the CWA that may be affected by the Rapanos decision.

' This guidance focuses only on those provisions of the agencies' regulations at issue in Ra~anos

In 2001, the Supreme Court held that use of "isolated" non-navigable intrastate waters by migratory birds was not by itself a sufficient basis for the exercise of federal regulatory jurisdiction under the CWA. Solid Waste Aeencv of Northern Cook County (SWANCC) v.
3

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Privileged and Confidential Attorney-client Privileged

applied to wetlands adjacent to navigable-in-fact waters, the Corps' conclusive standard for jurisdiction rests upon a reasonable inference of ecologic interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the [CWA] by showingpdjacency alone."). .. ....... ........... 2. Relatively Permanent Non-navigable Tributaries of Traditional Navigable Waters and Wetlands with a Continuous Surface Connection with Such Tributaries

A non-navigable tributary of a traditional navigable water is a non-navigable water body whose waters flow into a traditional navigable water either directly or indirectly by means of other tributaries. Both the plurality opinion and the dissent would uphold CWA jurisdiction over non-navigable tributaries that are "relatively permanent" -waters that typically (e.g., except due to drought) flow year-round or waters that have a continuous flow at least seasonally. 126 S.Ct, at 2221 n. 5 (Justice Scalia, plurality opinion) (explaining that "relatively permanent" does not necessarily exclude waters 'That might dry up in extraordinary circumstances such as drought" or "seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months"). Justice Scalia emphasizes that relatively permanent waters do not include tributaries "whose flow is 'coming and going at intervals ...broken, fitful...."' Id.(internal citations omitted). Therefore, the agencies will not include within the scope of "relatively permanent" waters ephemeral tributaries that flow only in response to precipitation (CWA jurisdiction over these waters will be evaluated under the significant nexus test described below, however). The agencies will assert jurisdiction over relatively permanent non-navigable tributaries of traditional navigable waters without a legal obligation to make a significant nexus finding. In addition, the agencies will assert jurisdiction over wetlands that are adjacent to and that have a continuous surface connection with a relatively permanent, non-navigable tributary, without the legal obligation to make a significant nexus finding. As explained above, the plurality opinion and the dissent agree that such wetlands are jurisdictional. Id,at 2226 (Justice Scalia, plurality opinion). The plurality opinion indicates that "continuous surface connection" is a "physical connection requirement," not a requirement that there always be surface water present between the wetland and the tributary. Id.at 2232 n. 10 (referring to "our physicalconnection requirement" and later stating that Riverside Bavview does not reject "the physicalconnection requirement") and 2234 ("[wletlands are 'waters of the United States' if they bear the 'significant nexus' of physical connection, which makes them as a practical matter

Privileged and Confidential Attorney-client Privileged indistinguishable i?om waters of the United States") (emphasis in original). See also 126 S.Q. at 2230 ("adjacent" means "physically abutting") and 2229 (citing to Riverside Bawiew as "confirm[ing] that the scope of ambiguity of 'the waters of the United States' is determined by a wetland'sphysical connection to covered waters...") (emphasis in original). Therefore, a continuous surface connection exists between a wetland and a relatively permanedt tributary where the wetland directly abuts the tributae (i.e., they are not separated by uplands, a berm, or similar geographic f e a t ~ r e ) . ~ 3. Non-navigable Tributaries That Are Not Relatively Permanent

...

The agentiks~iil assertjuris:dic"on over the folio,libg water bodicsbased m a determinati& &at the wazr body has a significanfnexus with. a traditional na\igable water: noa-z!+4vigable ~. tributaries that do not pvical!)!.ba~! .csr~.~.uous.flow !east seasop@!~~$ctlandsadjdjaceptb&~n:.n~~ig~ble.~~~!~~fs.. .a ... th@l:do not FjpicaUy hgvp contbluous &o ' aj least s~spnally; wetlands adjacen~ butthat ao not l% and to . . direedy abula non-navigable tributary. Significanriexus axis'@ h hr awiterbody, dther done 03% com7ijaation w?tb other similarly situated wNee waterbodies in thcreeion iincludine consideration of wetlands adjacent to tiibotaries. if-a?v).

Significant nexus includes consideration of hyiildl~gic factors indu&ng the following: volwne, duration, andfiwuencp of now; proximity fa fie uaditibnal navigaae water; size of the watershed; average annual &fall, average &jnu,dwinter snow pack; s ~ ~ ~ ~ ; i & d . ~dimensions. hannei to ca~@'poiI~taits aQd,flob&$ta@rs to~ition~l::l.ti~vigable.y~t@$; pbtkl.@g@Dsti~.habitaf' Rapping and f i l r y g pollutants; 6torQflfloodwaters; andmaintaining water quallty, cbmio~ce, navigaljility, and public health. The ~kencies expect that ths hUowing,geoaaphicfeatures are not part of tbe uitjutar). system: swales and erosional features (e.g. gullies, s m U washes characreriz.ed by low volume, idfrcquent, short duration flow and lac* an associated riparian cornmu&); ditches ~~~&u&goa(Isi& &$&a excavated whoily in add d r b g on14 uplands and that donor cany a relatively permanent flow of

Significantnexw~~o:inc~ud~~~nsiderati~.~f.~m~o~icf~~o~s.~~~~~.~fol~

The agencies will assert jurisdiction over non-navigable tributaries that are not relatively permanent where the tributary has a significant nexus with (i.e., more than a speculative or insubstantial effect on) traditional navigable waters. A significant nexus between a tributary and a traditional navigable water exists where the tributary, either alone or in combination with other A continuous surface connection does not require surface water to be continuously present between the wetland and the tributary. 33 C.F.R. $328.3(b) and 40 C.F.R 5 232.2 (defining wetIands as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support ... a prevalence of vegetation typically adapted for life in saturated soil conditions").
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Privileged and Confidential Attorney-client Privileged

similarly situated tributaries in the fegion, has more than an insubstantial or speculative effect on the chemical, physical, and biological integrity of a traditional navigable water. Thus, a significant nexus refers to the nature and extent of the hydrologic and ecologic relationship of the tributary to traditional navigable waters. Hydrologic factors include the frequency, volume, and duration ofthe tributary's flow and its proximity to traditional navigable waters. Ecologic factors include the tributary's capacity to carry pollutants or flood waters to traditional navigable waters and the nature and extent of the tributary's functions. The agencies' assertion ofjurisdiction over tributaries with a significant nexus to traditional navigable waters, either alone or in combination with other similarly situated tributaries in the region, is supported by five justices (Justice Kennedy and the four dissenting justices). While Justice Kennedy's opinion discusses the significant nexus test primarily in the context of wetlands adjacent to non-navigable tributaries, 126 S.Ct. at 2247-50, it also addresses jurisdiction over tributaries themselves. Justice Kennedy first expresses strong disagreement with the plurality's test for jurisdiction over non-navigable tributaries. a.at 2242 ("The plurality's first requirement - permanent standing water br continuous flow, at least for a period of 'some months,' ... makes little practical sense in a statute concerned with downstream water quality") and 2246 (".., the plurality's opinion is inconsistent with the Act's text, structure, and purpose"). In addition, he generally states that, based on the Supreme Court's decisions in Riverside Bavview and SWANCC, "the connection between a nonnavigable water or wetland may be so close, or potentially so close, that the Corps may deem the water or wetland a 'navigable water' under the Act. ... Absent a significant nexus, jurisdiction under the Act is lacking." 126 S.Ct. at 2241. Therefore, it is clear that Justice Kennedy would not join the plurality in its limitation of CWA jurisdiction to only "relatively permanent" non-navigable tributaries, and that as a general matter he would instead limit jurisdiction to those waterbodies that have a significant nexus with a traditional navigable water, although his opinion does not discuss the specific factors and functions he believes the agencies should consider in evaluating significant nexus for waterbodies other than adjacent wetlands. Based on Justice Kennedy's opinion, it is reasonable to conclude that he would support the assertion ofjurisdiction over any nbn-navigable tributaries that have a significant nexus with a traditional navigable water, and that application of the significant nexus test for non-nauigable tributaries should be consistent with the test he describes for wetlands. For this reason, the agencies will apply the significant nexus test when deciding whether to assert jurisdiction over a non-navigable tributary that is not relatively permanent, and will apply the test to such tributaries in the same manner in which Justice Kennedy articulated it for the wetlands at issue in Rapanos and Carabell. Id. at 2248 ("[Wletlands possess the requisite nexus, and thus come within the statutory phrase 'navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, ph sical, and biological integrity of other covered waters more readily understood as 'navigable."').' For purposes of this guidance, "When applying the significant nexus test to tributaries and wetlands, it is important to apply it within the limits ofjurisdiction articulated in SWANCC. Justice Kennedy cites SWANCC with
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Privileged and Co~lfidential Attorney-client Privileged

the agencies will consider tributaries to be similarly situated when they are located in the watershed defined by the nearest downstream traditional navigable water. For example, the agencies may consider the combined effects on a traditional navigable water of tributaries of the same order in the watershed." Principal considerations when evaluating the significant nexus include the volume, duration, and frequency of the flow of water in the tributary and the proximity of the tributary to a traditional navieable water. The anencies will consider all available hvdroloeic information u (e.g., gage data, flood predictions historic records of water flow2.........2 ................. ......................................................... . statistical data personal . . .................. observations/records, etc.) and physical indicators of flow including the presence of an ordinary 33 CFR 328.3(e) and high water mark (OHWM) with a-channel defined by bed and banks. Regulatory Guidance Letter 05-05 (Dec. 7, 2005). Consideration will be given to certain relevant contextual factors that directly influence the hydrology of tributaries including the size of the tributary's watershed, average annual rainfall, average annual winter snow pack, slope, and channel dimensions.

The agencies believe that, in many cases, the presence of a bed, banks, and OHWM is a significant but not dispositive factor in evaluating whether a tributary carries a volume, frequency, and duration of flow such that it has a significant nexus with a traditional navigable water and is therefore subject to CWA jurisdiction. Justice Kennedy states that the agenciesPuse of the OHWM to identify tributaries "may well provide a reasonable measure of whether specific minor tributaries bear a sufficient nexus with other regulated waters to constitute 'navigable waters' under the Act[,]" assuming it is applied reasonably consistently, because it "presumably provides a rough measure of the volume and regularity of flow." Id. at 2249. Generally, an OHWM is identified based on physical characteristics created by the regular flow of water, such as a clear line on the stream bank, shelving, changes in the character of the bank's soil, and the destruction ofterrestrial vegetation. B e 33 C.F.R. 5 328.3(e).- See, 126 S.Ct. at 2249. The characteristics of beds, banks, and O W M s (e.g., differences in soil where water flows regularly

approval and asserts that the significant nexus test, rather than being articulated for the first time in Rauanos, was established in SWANCC. 126 S.Ct. at 2246 (describing SWANCC as "interpreting the Act to require a significant nexus with navigable waters"). It is clear, therefore, that Justice Kennedy did not intend for the significant nexus test to be applied in a manner that would result in assertion ofjurisdiction over waters that he and the otherjustices determined were not jurisdictional in SWANCC. Nothing in this guidance should be interpreted as providing authority to assert jurisdiction over waters deemed non-jurisdictional by SWANCC. For a discussion of the order of tributaries, see Alan Needle Strahler's 1952 article "Dynamic basis of geomorphology" in the Geological Society of America Bulletin.
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Privileged and Confidential Attorney-client Privileged

compared to where it does not) can provide information regarding the volume, frequency, and duration of flow, since flowing water over time created the bed, banks, and the OHWM."

In addition, the agencies will consider other relevant factors including the functions performed by the tributary and the functions performed by any adjacent wetlands, either alone or in combination with other similarly situated tributaries and wetlands in the region. These factors may include, but are not limited to, the following: the hydrologic or ewlogic relationship between the tributary and the traditional navigable water; the nature and extent of fbnctions the tributary performs; the tributary's proximity to the traditional navigable water; and the extent to which the tributary has the capacity to carry pollutants (e.g., petroleum wastes, toxic wastes, sediment) or flood waters to traditional navigable waters. &, generally, 126 S.Ct at 2248-53; see aIso 126 S.Ct at 2249 ("Just as control over the non-navigable parts of a river may be -essential or desirable in the interests of the navigable portions, so may the key to flood control on a navigable stream be found in whole or in part in flood control on its tributaries...")(citing to Oklahoma ex rel. Phillivs v. Guv F. Atkinson Co., 313 U.S. 508, 524-25(1941)). In evaluating whether a signiticant nexus exists, the agencies will evaluate ecological functions performed by the tributary including the capacity to transfer nutrients and organic carbon vital to support downstream foodwebs, habitat sevices such as providing spawning areas for recreationally or commercially important species in downstream waters, and the extent to which the tributary performs functions related to maintenance of downstream water quality such as sediment trapping.

"The OHWM also serves to define the lateral limit ofjurisdiction in a non-navigable tributary where there are no adjacent wetlands. See 33 C.F. R. 1328.4(c) and Regulatory Guidance Letter 05-05 (Dec. 7,2005). While EPA regions and Corps districts must exercise judgment to identify the OHWM on a case-by-case basis, the Corps' regulations identify the factors to be applied. These regulations have recently been further explained in Regulatory Guidance Letter 05-05 @ec. 7,2005). The agencies will apply the regulations, the Regulatory Guidance Letter and take other steps as needed to ensure that the OHWM identification factors are applied consistently nationwide.

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Moreover, when evaluating jurisdiction over non-navigable tributaries that are not relatively permanent where there c one or more ad'acent wetlands along .......... @......-.......... ire the len h of the 1........................... tributary, the agencies1 significant nexus analysis will consider the functions performed by the tributary itself as well as the functions performed by adjacent wetlands, either alone or in combination with other similarly situatedtributaries and wetlands in the region. Because tributaries and their adjacent wetlands function as an integrated aquatic system, see 126 S.Ct. at 2244 (discussing RiversideBavview), where a non-navigable tributary has adjacent wetlands, the to functions performed by any wetlands adjacent to the tributary will be communic~ted the traditional navigable water by means of the tributary. Therefore, the functions of the tributary and adjacent wetlands should be considered together in evaluating effects on the chemical, physical, and biological integrity of a traditional navigable water. These functions may include important ecological functions such as storage of flood water and runoff, pollutant trapping and filtration, improvement of water quality, and the support of habitat for a wide range of aquatic species, as well as critical functions that contribute to the maintenance of water quality, commerce, navigability, and public health in traditional navigable waters. See, generally, 126 S.Ct. at 2248-53 (Justice Kennedy, concurring).
A significant nexus between a tributary and a traditional navigable water must be more than merely a speculative or insubstantial effect. In particular, the burden to demonstrate a significant nexus increases for tributaries at the upper reaches of the tributary system, because even when considered with other similarly situated tributaries in the watershed, such tributaries may not have a volume, frequency, and duration of flow or perform functions sufficient to have more than a speculative or insubstantial effect on the chemical, physical, and biological integrity of traditional navigable waters. In addition, consideration must be given to the distance between the tributary and downstream traditional navigable waters. The tributary must not be so remote as to make the effect on traditional navigable waters speculative or insubstantial. However, in some cases, even tributaries that are some distance from a traditional navigable water may have a significant nexus, either alone or in combination with other similarly situated tributaries in the region, with the traditional navigable water.

Corps districts and EPA regions shall document in the administrative record the totality of available information regarding whether a tributary has a significant nexus with a traditional navigable water, including the physical indicators of flow in a particular case and an explanation of why these indicators do or do not demonstrate the presence of flow sufficient to establish a significant nexus between a tributary water body and traditional navigable waters. In addition, the districts and regions will include in the record any available information regarding the functions and values of the tributary and any adjacent wetlands, either alone or in combination with other similarly situated tributaries and adjacent wetlands in the region, that affect the chemical, physical, and biological integrity of traditional navigable waters. The agencies expect that the following geographic features will not be waters of the United States because they are not part of the tributary system: swales and erosional features (e.g. gullies, small washes characterized by low volume, infrequent, short duration flow and

Privileged and Confidential Attorney-client Privileged

lacking an associated riparian ~ommunity).'~ addition, ditches [j~dudi11% In ror~cisii~e ditcl~e,.) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of wateqare generally not part of the tributary system. See 51 Fed. Reg. 41206,41217 (Nov. 13, .................................................................................................................... 19861. Because these features are not uart of the tributan svstem. thev will not be considered as .. , . . . part of any s~gn~ficant nexus analysls,!nxf~~.~g.pny ~ t r n ~ i l a t ; ~ ~ s ~ , ~ .nex~~s~n~a!ysi~. c n.ifici~~~t

. .

4. 'Certain Adjacent Wetlands

4 combination with orbe'r sirriilarly situated adjacent wetlandsin thc$egion, have a significant nexus with traditionalfiavigiibl'ewattrs: wetlands adjacent to anon-natigablp tributcuy that does not rypicall~~hav~~ontinu~ci~ seasonally and ?v~Uad& adjacentto; bqisephtedby a berm, $,OM'a$ least dike, orsimilg~feature&t& auibjltaly that contains c o ~ ~ ~ u flow aylea3raasonaUy. ous Signifiw ne& exists where t2ieii.eflqds;eitber alone or in qombinadon x3&a h a similarly sitr;ated4vevetlaids in the @ion, s'igtiificanslyaffectihe chemical, physicil, ahd biological idregrity of

I
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~ignifisant nexcs $lu&s copSidcmtidp o f the hydrologic and tcblggic relationshp benveen the \vetlands and badittonal. navigable waters, %fie,f ~ c t i o n of the u'etliil~ds, the effects of the s and ,.>, . . . ... .:*.... % @*,.,~ ~ ~ .@ .~ ~ h.; :.:..:;.., $ Q ~.r.p....,.:-2......~ ~ $ ;. 1 ~. .~ ..@. ~. ... ~. .~ ... .. . . . . . . . .. O. & I. ~. .~ &. ': .. . .. . . ,.v,.', ..: . . .. . . . . ,.
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A significant nexus finding is required.to assert jurisdiction over the following types of wetlinds: (I) wetlands adjacent to a relatively permanent tributary but separated from it by a berm, dike, levee, or similar feature and (2) wetlands adjacent to tributaries that are not relatively permanent. For such wetlands, the agencies will assert jurisdiction where the wetlaids have a significant nexus, either alone or in combination with other similarly situated v.wetlands in the ............. region, with a traditionalnavigable water; Five justices (Justice Kennedy and the four dissenting justices) agree that such wetlands are within the scope of CWA jurisdiction. Id.at 2248 (Justice Kennedy, concurring). Justice Kennedy described jurisdiction based on a significant nexus as existing where wetlands, "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity" of traditional navigable waters. When the effects on water quality are "speculative or insubstantial," a significant nexus does not exist. Id. at 2248 (Justice Kennedy, concurring). For purposes of this guidance, the agencies will consider
l3 Even when not themselves waters of the United States, some of these geographic feature's (e.g., swales) may still contribute to a significant nexus between an adjacent wetland and a traditional navigable water where they serve as a hydrologic connection between the wetland and other waters, In addition, these features may function as point sources (i.e., ''discernible, confined, and discrete conveyances," such that discharges of pollutants to other waters through these features could be subject to CWA regulations. 33 U.S.C. 8 1362(14).

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Privileged and Confidential Attorney-client Privileged

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wetlands to be similarly situated when they are adj~~cent wct~mds located in the watershed defined by the nearest downstream traditional navigable water. When evaluating whether a significant nexus exists, the regions and districts. should take into account thd factorsdiscussed below: (I) hydrologic andlor ecologic relationship between the wetlands and a tiaditional navigable water, (2) functions of the wetlands, and (3) effects of the wetlands on the traditional navigable water. When determining whether a significant nexus exists between adjacent wetlands and traditional navigable waters, the agencies will first determine whether there is a hydrologic andlor ecological relationship (i.e., nexus) between the wetlands and a traditional navigable water. For example, a hydrologic relationship can take the form of a demonstrated exchange of water between the tributary and its adjacent wetlands and a hydrologic connection between the tributary and a traditional navigable water.I4 Once a nexus has been established, the agencies will determine whether the nexus is significant by considering the functions the wetlands perform, based on the important ecological functions Justice Kennedy referenced, including floodwater and runoff storage, pollutant trapping and filtering, improvement of water quality, and the support of habitat for a wide range of aquatic species, as well as critical functions that contribute to the maintenance of water quality, commerce, navigability, and public health in traditional navigable waters. &, generally, 126 S.Ct. at 2248-53 (Justice Kennedy, concurring). Where a significant nexus is established for a particular wetland. a Corps district or EPA region may, "as a matter of administrative convenience or necessity," presume that other comparable wetlands in the region are also jurisdictional. Id.at 2249. In such circumstances, the district or region will document in the record its presumption that other comparable (i.e., adjacent) wetlands in the region are jurisdictional, and the basis for that presumption. After identifying the functions the wetlands perform, the agencies will evaluate whether, alone or in combination with other similarly situated wetlands that are adjacent.to non-navigable tributariks in the region, the wetlands are likely to have an effect that is more than speculative or insubstantial on the chemical, physical, Ad. biological integrity of a traditionalnavigable water. As thedistance from wetlands to the navigable waters increases, it will become increasingly important to document the potential for the wetlands, alone or in combination with other similarly situated wetlands in the region, to have more than aspeculative or insubstantial nexus with a traditional navigable water.
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Justice Kennedy also concluded that the absence of a hydrologic connection may be evidence 126 S.Ct 2251 ("Given the role of the wetlands' significance to thk aquatic system. wetlands play in pollutant filtering, flood control, and runoff storage, it may well be the absence of hydrologic connection (in the sense of interchange of waters) that shows the wetlands' significance for the aquatic system."). Thus, a hydrologic connection between wetlands and the adjacent waterbody is not essential to the finding of significant nexus where the wetlands, alone or in combinatibn with similarly situated wetlands in the region, perform the functions referred to by Justice Kennedy.
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Privileged and Confidential Attorney:client Privileged

Documentation As described above, the agencies will assert CWA jurisdiction over the following waters without the legal obligation to make a significant nexus determination: traditional navigable waters and wetlands adjacent thereto, non-navigable tributaries that are relatively permanent waters, and wetlands with a continuous surface connection with such tributaries. The agencies will also assert CWA jurisdiction over other non-navigable tributaries and over other wetlands adjacent to non-navigable tributaries where they have a significant nexus with Gaditional navigable waters. For purposes of CWA 5 404 determinations by the Corps, the Corps and EPA are developing a revised form to be used by field regulators for documenting the assertion or declination of CWA jurisdiction. Corps districts and EPA regions must ensure that there is adequate information in the record to support any determination whether or not a water is within the scope of the CWA's jurisdiction. Thus, the Corps and EPA must demonstrate and document in the record that a particular water either fits within a class identified above as not requiring a significant nexus determination, or that the water has a significant nexus with a traditional navigable water. As a matter of policy, Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and atraditional navigable water, even#hough a significant nexus finding ............ .................................. .-...--.--.--. ............................ is not required as a matter of law. All pertinent documentation and analyses for a given jurisdictional determination ) (including the revised f o ~ m shall be adequately reflected in the record and clearly demonstrate the basis forjuri~diction.'~ Maps, aerial photography, soil surveys, watershed studies, local development plans, literature citations, and references from studies pertinent to the parameters being reviewed are examples of information that will assist staff in completing accurate jurisdictional determinations. The level of documentation may vary among projects. For example, jurisdictional determinations for complex projects may require additional documentation by the project manager.

For jurisdictional determinations and permitting decisions, such information shall be posted on the appropriate Corps website for public and interagency information.
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