Monday, December 8, 2008

New Rapanos Memo

EPA and the Corps in a guidance memo issued December 2 took a somewhat conservative position on what constitutes waters of the United States after the U.S. Supreme Court's decision in Rapanos.  CWA_Jurisdiction_Following_Rapanos 12 02 08.pdf    Rather than keep "either permanent flow or significant nexus" position, the agencies have developed a somewhat curious hybrid.  In particular, the agencies determined that to find a significant nexus, discharges to non-navigable tributaries without a relatively permanent flow and wetlands adjacent to non-navigable tributaries with relatively permanent flows  must have a significant effect on  water quality of traditional navigable waters, even though the agencies classify non-navigable tributaries with relatively permanent flows as "waters of the United States."   It would seem to me that discharges into any water that had a significant effect on the water quality of waters of the United States should be within the agencies' jurisdiction.  I understand the problem -- if something that significantly affects a "water of the United States" becomes a "water of the United States," then every discharge into a water that significantly affected that water would be a regulated discharge, ad infinitum.  Actually, that might be just fine.  EPA has a good Rapanos page  for those who wish to delve deeper.

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Regarding the following statement:

“…In particular, the agencies determined that to find a significant nexus, discharges to non-navigable tributaries without a relatively permanent flow and wetlands adjacent to non-navigable tributaries with relatively permanent flows must have a significant effect on water quality of traditional navigable waters, even though the agencies classify non-navigable tributaries with relatively permanent flows as "waters of the United States." …”

This statement requires some clarification. Under the new Rapanos Guidance memorandum, wetlands that directly “abut” a non-navigable tributary with relatively permanent flow do not require a significant nexus determination. Only those wetlands that are “adjacent” but do not directly “abut” a non-navigable tributary with relatively permanent flow, would require a significant nexus determination to establish Clean Water Act jurisdiction. The confusion lies in the definition of “adjacency.” The Corps of Engineers and the U.S. Supreme Court define “adjacent” differently:

The Corps of Engineers definition of adjacency: 33 CFR Part 328.3(a)(c):
“…The term "adjacent" means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are "adjacent wetlands."…”

The recent US Supreme Court Rapanos decision definition of adjacency:
“… only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between the two, are “adjacent” to such waters and covered by the Act…”

Writing for the Plurality, Justice Scalia stipulated that for any wetlands to be jurisdictional there must be a continuous surface water connection between the wetlands and either; traditional navigable waters or a relatively permanent non-navigable tributary (waters of the United States). The type of surface water connection that is necessary to establish jurisdiction must be broad such that there is no clear boundary or physical demarcation between water in the wetlands and water in the tributary.

The new Rapanos Guidance memorandum requires the Corps to defer to relevant case law when determining Clean Water Act jurisdiction. Footnote 17 states;

“… 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 of this guidance to a particular situation, and EPA and/or 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…”

Accordingly, the controlling legal definition of “adjacency” is the U.S. Supreme Court’s Plurality definition and not the Corps of Engineers’ definition that is used in the Rapanos Guidance memorandum. Only wetlands that directly “abut” either traditional navigable waters or a non-navigable tributary with relatively permanent flow are “adjacent” and therefore subject to federal jurisdiction under Section 404 of the Clean Water Act.

Jim Coody PE
Houston, Texas

Posted by: Jim Coody PE | Dec 12, 2008 5:13:21 AM

Regarding the following statement:

“…In particular, the agencies determined that to find a significant nexus, discharges to non-navigable tributaries without a relatively permanent flow and wetlands adjacent to non-navigable tributaries with relatively permanent flows must have a significant effect on water quality of traditional navigable waters, even though the agencies classify non-navigable tributaries with relatively permanent flows as "waters of the United States." …”

This statement requires some clarification. Under the new Rapanos Guidance memorandum, wetlands that directly “abut” a non-navigable tributary with relatively permanent flow do not require a significant nexus determination. Only those wetlands that are “adjacent” but do not directly “abut” a non-navigable tributary with relatively permanent flow, would require a significant nexus determination to establish Clean Water Act jurisdiction. The confusion lies in the definition of “adjacency.” The Corps of Engineers and the U.S. Supreme Court define “adjacent” differently:

The Corps of Engineers definition of adjacency: 33 CFR Part 328.3(a)(c):

“…The term "adjacent" means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are "adjacent wetlands."…”

The recent US Supreme Court Rapanos decision definition of adjacency:

“… only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between the two, are “adjacent” to such waters and covered by the Act…”

Writing for the Plurality, Justice Scalia stipulated that for any wetlands to be jurisdictional there must be a continuous surface water connection between the wetlands and either; traditional navigable waters or a relatively permanent non-navigable tributary (waters of the United States). The type of surface water connection that is necessary to establish jurisdiction must be broad such that there is no clear boundary or physical demarcation between water in the wetlands and water in the tributary (abutting).

The new Rapanos Guidance requires the Corps to defer to relevant case law when determining Clean Water Act jurisdiction. Footnote 17 states;

“… 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 of this guidance to a particular situation, and EPA and/or 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…”

Accordingly, the controlling legal definition of “adjacency” is the U.S. Supreme Court Plurality definition and not the Corps of Engineers’ definition that is used in the new Rapanos Guidance memorandum. Only wetlands that directly abut either traditional navigable waters or a non-navigable tributary with relatively permanent flow are "adjacent" (and jurisdictional)under Section 404 of the Clean Water Act.

Jim Coody PE
Houston, Texas

Posted by: Jim Coody PE | Dec 11, 2008 3:20:37 PM

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