Transcript 9th ANNUAL WETLANDS & WATERSHED WORKSHOP

9th ANNUAL WETLANDS &
WATERSHED WORKSHOP
Implications of Current Wetlands Policy
and Management
Regulatory Implications Based on the Recent
Supreme Court Decision
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This talk is meant for discussion purposes
only and in no way intended to imply or
represent the opinion of EPA Region III
or the US federal government.
Past Federal Court Cases affecting the Section
404 Regulatory Program
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Riverside Bayview – US Supreme Court
Wilson – 4th Circuit Court of Appeals
Deaton – 4th Circuit Court of Appeals
NMA (Tulloch) – DC Circuit Court of
Appeals
Avoyelles Sportsmen’s League – 5th Circuit
Court of Appeals
SWANCC – US Supreme Court
Cases Dealt with 2 Primary Issues
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Activity based jurisdictional questions:
(NMA and Avoyelles) – types of
activities which require a Section 404
permit when undertaken in waters.
Geographic based questions:
(SWANCC, Riverside, Wilson) – types
of areas that are defined as “waters of
the United States” by the Act.
Important Difference between Issues
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Activity questions apply only to Section
404 but could be regulated by other
Sections of the Act.
Geographic scope of “waters” applies to all
of the CWA (311, 402, 404).
What permits are needed ? What
authority?
Rapanos/Carabell
Supreme Court Case(s)
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Brief overview of two cases:
Enforcement action and a question of
distance from Navigable “in-fact” waters.
Permit required for construction in a
wetlands separated from perennial water
by berm.
Not the Opinion of EPA Region III
for discussion purposes only
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Split Court 4-1-4
Plurality Opinion authored by Justice
Scalia
Kennedy sided with Plurality on issue of
remand for “Significant nexus” link.
Stevens authored descent
Historically courts would follow Kennedy
Now ? Texas re-districting case follow
majority on each element
Issues Raised by Court:
Extent of jurisdiction - Streams
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Kennedy opinion: No specific test provided
but rejects Corps’ current definition of
tributaries as too broad (“The Corps’
existing standard for tributaries, however,
provides no such assurance [of impact to
navigable-in-fact waters]”; rejects
plurality’s test as too restrictive (“The
plurality’s first requirement – permanent
standing water or continuous flow, at….
Issues Raised by Court:
Extent of jurisdiction - Streams
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Kennedy – continued …..least for a period of
‘some months’…. makes little practical sense in a
statute concerned with downstream water
quality.”
Plurality opinion: “a relatively permanent body
of water connected to traditional interstate
navigable waters”; “’bodies’ of water ‘forming
geographical features’”; not “transitory puddles
or ephemeral flows”; “… also we do not exclude
seasonal rivers….. common usage distinguish
between a wash and a seasonal river.”
“Relatively permanent” body of water
?
“Relatively permanent” body of water
?
Issues Raised by Court:
Extent of jurisdiction - Wetlands
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Kennedy opinion: “[T]he Corps’
jurisdiction over wetlands depends upon
the existence of a significant nexus
between the wetlands in question and
navigablewaters in the traditional sense.”;
”Where wetlands perform these filtering
and runoff-control functions, filling them
may increase downstream pollution, as
much as a discharge of a toxic pollutants
would.”
Issues Raised by Court:
Extent of jurisdiction - Wetlands
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Kennedy opinion cont. – Seems to accept Corps’
definition of adjacency as reasonable and
appears to define “significant nexus” as “integral
parts of the aquatic environment”.; Adjacency
(abutment) to navigable-in-fact waters and
“major tributaries” may suffice to support
jurisdiction w/o further inquiry into “significant
nexus.”; hydrologic connection or lack thereof
may not preclude jurisdiction; may be able to
show “s-nex” to catagories of wetlands.
Issues Raised by Court:
Extent of jurisdiction - Wetlands
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Plurality opinion – (1) Adjacent channel
contains a water of the United states,
defined as a relatively permanent body of
water connected to traditional interstate
navigable waters and (2) Wetlands has
continuous surface connection with that
water, making it difficult to determine
where the ‘water’ ends and the ‘wetland’
begins.
“Relatively permanent” body of water
with a “continuous surface
connection” ?
“continuous surface connection”
Implications to Program
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Multiple jurisdictional tests to determine
waters (1) significant nexus, (2) relative
permanence, (3) geographical feature, (4)
pathway to navigable-in-fact waters.
May cause JD time increase; need to
develop reproducible and transferable
sampling methodologies.
Could cause an increase in JD challenges
straining limited resources.
Implications to Program
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Defining Functions and Values which
indicate “nexus” ?
Size of watershed to analyze ?
Indicators of permanent flow ?
Training and equipment for regulatory
staff ?
Impacts to SPGP programs and States ?
The Future ?
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Court seems to be asking Congress and
regulatory programs for clear definition of
“Waters of the US.”
Ultimately courts will determine the
standards for “Significant Nexus” and
extent of tributaries until such time as
clear definitions are issued by the US.