9th ANNUAL WETLANDS & WATERSHED WORKSHOP Implications of Current Wetlands Policy and Management

Regulatory Implications Based on the Recent Supreme Court Decision 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 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 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 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) 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. Rapanos was both a criminal and civil case of earth moving clearing ,grading and ditching. Carabell was a position by the Corps that a permit was needed to fill in a wetlands area (adjacency issue)

Not the Opinion of EPA Region III for discussion purposes only 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 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…. This is a “how far up the watershed question” and an issue of effects to NIF waters.

Issues Raised by Court: Extent of jurisdiction - Streams 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.” Plurality issues of permanence and geographic feature

“Relatively permanent” body of water ? Continuous Flow; Bed and bank; ground water seep.

“Relatively permanent” body of water ? Flow; feature on the landscape; 1 – 2 feet across; 3 to 6 inches deep.

Issues Raised by Court: Extent of jurisdiction - Wetlands 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.” Functions and values of “Significant Nexus” ?

Issues Raised by Court: Extent of jurisdiction - Wetlands 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 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. What does this mean ? A wetlands is a water so is this tributary ? Difficult for who ?

“Relatively permanent” body of water with a “continuous surface connection” ? Small riparian zone wetlands adjacent to permanent waters ?

“continuous surface connection” Large wetlands complex which forms channels as hydrologic volume increases.

Implications to Program 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 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 ? Carbon transport; carbon sequestration; Nitrogen & Phosphorous issues; Flood flow attenuation. 8 digit HUC ? Bed and Bank; Biological benchmarks; Who and how will training be developed; will states modify their programs ? Assumption ?

The Future ? 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. Cases brought less clarity to the program; no bright line test in the foreseeable future.