9th ANNUAL WETLANDS & 9th ANNUAL WETLANDS & WATERSHED WORKSHOPWATERSHED WORKSHOP

Implications of Current Implications of Current Wetlands Policy and Wetlands Policy and

ManagementManagement

Regulatory Implications Based on the Recent Supreme Court Decision

This talk is meant for discussion This talk is meant for discussion purposes only and in no way purposes only and in no way intended to imply or represent intended to imply or represent the opinion of EPA Region III or the opinion of EPA Region III or the US federal government.the US federal government.

Past Federal Court Cases affecting the Past Federal Court Cases affecting the Section 404 Regulatory ProgramSection 404 Regulatory Program

Riverside Bayview – US Supreme CourtRiverside Bayview – US Supreme Court Wilson – 4Wilson – 4thth Circuit Court of Appeals Circuit Court of Appeals Deaton – 4Deaton – 4thth Circuit Court of Appeals Circuit Court of Appeals NMA (Tulloch) – DC Circuit Court of NMA (Tulloch) – DC Circuit Court of

AppealsAppeals Avoyelles Sportsmen’s League – 5Avoyelles Sportsmen’s League – 5thth

Circuit Court of AppealsCircuit Court of Appeals SWANCC – US Supreme Court SWANCC – US Supreme Court

Cases Dealt with 2 Primary IssuesCases Dealt with 2 Primary Issues

Activity based jurisdictional questions: Activity based jurisdictional questions: (NMA and Avoyelles) – types (NMA and Avoyelles) – types

of of activities which require a Section activities which require a Section 404 404 permit when undertaken in waters.permit when undertaken in waters.

Geographic based questions: Geographic based questions:

(SWANCC, Riverside, Wilson) – (SWANCC, Riverside, Wilson) – types types of areas that are defined as of areas that are defined as “waters of “waters of the United States” by the the United States” by the Act.Act.

Important Difference between IssuesImportant Difference between Issues

Activity questions apply only to Activity questions apply only to Section 404 but could be regulated Section 404 but could be regulated by other Sections of the Act. by other Sections of the Act.

Geographic scope of “waters” applies Geographic scope of “waters” applies to all of the CWA (311, 402, 404).to all of the CWA (311, 402, 404).

What permits are needed ? What What permits are needed ? What authority?authority?

Rapanos/Carabell Rapanos/Carabell Supreme Court Case(s)Supreme Court Case(s)

Brief overview of two cases:Brief overview of two cases: Enforcement action and a question of Enforcement action and a question of

distance from Navigable “in-fact” distance from Navigable “in-fact” waters.waters.

Permit required for construction in a Permit required for construction in a wetlands separated from perennial wetlands separated from perennial water by berm.water by berm.

Not the Opinion of EPA Region IIINot the Opinion of EPA Region IIIfor discussion purposes onlyfor discussion purposes only

Split Court 4-1-4Split Court 4-1-4 Plurality Opinion authored by Justice Plurality Opinion authored by Justice

ScaliaScalia Kennedy sided with Plurality on issue of Kennedy sided with Plurality on issue of

remand for “Significant nexus” link.remand for “Significant nexus” link. Stevens authored descentStevens authored descent Historically courts would follow Historically courts would follow

KennedyKennedy Now ? Texas re-districting case follow Now ? Texas re-districting case follow

majority on each elementmajority on each element

Issues Raised by Court:Issues Raised by Court:Extent of jurisdiction - StreamsExtent of jurisdiction - Streams

Kennedy opinionKennedy opinion: No specific test : No specific test provided but rejects Corps’ current provided but rejects Corps’ current definition of tributaries as too broad definition of tributaries as too broad (“The Corps’ existing standard for (“The Corps’ existing standard for tributaries, however, provides no such tributaries, however, provides no such assurance [of impact to navigable-in-fact assurance [of impact to navigable-in-fact waters]”; rejects plurality’s test as too waters]”; rejects plurality’s test as too restrictive (“The plurality’s first restrictive (“The plurality’s first requirement – permanent standing water requirement – permanent standing water or continuous flow, at….or continuous flow, at….

Issues Raised by Court:Issues Raised by Court:Extent of jurisdiction - StreamsExtent of jurisdiction - Streams

Kennedy – continuedKennedy – continued …..least for a period of …..least for a period of ‘some months’…. makes little practical sense ‘some months’…. makes little practical sense in a statute concerned with downstream in a statute concerned with downstream water quality.” water quality.”

Plurality opinionPlurality opinion: “a relatively permanent : “a relatively permanent body of water connected to traditional body of water connected to traditional interstate navigable waters”; “’bodies’ of interstate navigable waters”; “’bodies’ of water ‘forming geographical features’”; not water ‘forming geographical features’”; not “transitory puddles or ephemeral flows”; “… “transitory puddles or ephemeral flows”; “… also we do not exclude seasonal rivers….. also we do not exclude seasonal rivers….. common usage distinguish between a wash common usage distinguish between a wash and a seasonal river.”and a seasonal river.”

““Relatively Relatively permanentpermanent” body of ” body of water ?water ?

““Relatively Relatively permanentpermanent” body of ” body of water ?water ?

Issues Raised by Court:Issues Raised by Court:Extent of jurisdiction - WetlandsExtent of jurisdiction - Wetlands

Kennedy opinionKennedy opinion: “[T]he Corps’ : “[T]he Corps’ jurisdiction over wetlands depends jurisdiction over wetlands depends upon the existence of a significant upon the existence of a significant nexus between the wetlands in nexus between the wetlands in question and navigablewaters in the question and navigablewaters in the traditional sense.”; ”Where wetlands traditional sense.”; ”Where wetlands perform these filtering and runoff-perform these filtering and runoff-control functions, filling them may control functions, filling them may increase downstream pollution, as increase downstream pollution, as much as a discharge of a toxic much as a discharge of a toxic pollutants would.”pollutants would.”

Issues Raised by Court:Issues Raised by Court:Extent of jurisdiction - WetlandsExtent of jurisdiction - Wetlands

Kennedy opinion Kennedy opinion cont. – Seems to accept cont. – Seems to accept Corps’ definition of adjacency as reasonable Corps’ definition of adjacency as reasonable and appears to define “significant nexus” as and appears to define “significant nexus” as “integral parts of the aquatic environment”.; “integral parts of the aquatic environment”.; Adjacency (abutment) to navigable-in-fact Adjacency (abutment) to navigable-in-fact waters and “major tributaries” may suffice to waters and “major tributaries” may suffice to support jurisdiction w/o further inquiry into support jurisdiction w/o further inquiry into “significant nexus.”; hydrologic connection “significant nexus.”; hydrologic connection or lack thereof may not preclude jurisdiction; or lack thereof may not preclude jurisdiction; may be able to show “s-nex” to catagories of may be able to show “s-nex” to catagories of wetlands.wetlands.

Issues Raised by Court:Issues Raised by Court:Extent of jurisdiction - WetlandsExtent of jurisdiction - Wetlands

Plurality opinionPlurality opinion – (1) Adjacent channel – (1) Adjacent channel contains a water of the United states, contains a water of the United states, defined as a relatively permanent body defined as a relatively permanent body of water connected to traditional of water connected to traditional interstate navigable waters and (2) interstate navigable waters and (2) Wetlands has continuous surface Wetlands has continuous surface connection with that water, making it connection with that water, making it difficult to determine where the ‘water’ difficult to determine where the ‘water’ ends and the ‘wetland’ begins.ends and the ‘wetland’ begins.

““Relatively Relatively permanentpermanent” body of ” body of water with a “continuous surface water with a “continuous surface

connection” ?connection” ?

““continuous surface connection”continuous surface connection”

Implications to ProgramImplications to Program

Multiple jurisdictional tests to Multiple jurisdictional tests to determine waters (1) significant determine waters (1) significant nexus, (2) relative permanence, (3) nexus, (2) relative permanence, (3) geographical feature, (4) pathway to geographical feature, (4) pathway to navigable-in-fact waters.navigable-in-fact waters.

May cause JD time increase; need to May cause JD time increase; need to develop reproducible and transferable develop reproducible and transferable sampling methodologies.sampling methodologies.

Could cause an increase in JD Could cause an increase in JD challenges straining limited resources.challenges straining limited resources.

Implications to ProgramImplications to Program

Defining Functions and Values which Defining Functions and Values which indicate “nexus” ?indicate “nexus” ?

Size of watershed to analyze ?Size of watershed to analyze ? Indicators of permanent flow ?Indicators of permanent flow ? Training and equipment for Training and equipment for

regulatory staff ?regulatory staff ? Impacts to SPGP programs and Impacts to SPGP programs and

States ?States ?

The Future ?The Future ?

Court seems to be asking Congress Court seems to be asking Congress and regulatory programs for clear and regulatory programs for clear definition of “Waters of the US.”definition of “Waters of the US.”

Ultimately courts will determine the Ultimately courts will determine the standards for “Significant Nexus” and standards for “Significant Nexus” and extent of tributaries until such time extent of tributaries until such time as clear definitions are issued by the as clear definitions are issued by the US.US.