Implementing the Clean Water Act after Rapanos : An Update

1. Implementing the Clean Water Act after Rapanos: An Update FHWA Environmental Conference Washington, DC June 2008

2. Overview of Presentation • Brief Background • The Rapanos decision, interagency guidance, and coordination agreements • Latest Developments • Comments on guidance, and potential interagency responses • Emerging trends in reviewed JDs • Litigation • Ongoing Challenges

3. Clean Water Act Jurisdiction • CWA covers “navigable waters,” defined in the statute as “waters of the US and territorial seas” • “waters of the US” further defined by agencies at 40 CFR 230.3 etc. • Reflects legislative history indicating should be “construed as broad as the Commerce Clause allows” • Not changed much in concept since mid ’70s

4. The Supremes Weigh In • Riverside Bayview(1985):Reasonable for agencies to construe “navigable waters” as including wetlands adjacent to other jurisdictional waters • SWANCC (2001):“migratory bird rule” is not a valid sole basis for CWA jurisdiction • Reasoning could be extended further: CWA intended some connection to navigability • Did not invalidate existing regulations • Has implications for all CWA programs, not just §404

5. Rapanos and Carabell • Issues: does CWA cover non-navigable tributaries and their adjacent wetlands? • Result: nine justices and five opinions, with none having a majority of votes. Remanded. • Plurality/Scalia: JD if relatively permanent or seasonal rivers, or wetlands with continuous surface connection to such waters. • Kennedy: wetlands and waters are JD if “significant nexus” to navigable waters (individually or cumulatively), affecting phys/chem/bio of navigable waters.

6. Interagency Rapanos Guidance • June 5, 2007, EPA/Corps guidance interprets WUS after Rapanos. • Addresses 3 categories of waters • Traditional navigable waters and their adjacent wetlands • Waters that satisfy the plurality standard (i.e., relatively permanent) • Waters that satisfy the Kennedy standard (i.e., significant nexus) • Isolated Waters Unaddressed by Rapanos Guidance • but June 2007 MOA added new coordination procedures for a(3) decisions • interagency coordination required for all isolated JD determinations

7. Comments on Rapanos Guidance • 65,000 public comments under review to determine next steps (www.regulations.gov) • Many stakeholder sectors represented with diverse perspectives. • Common perspectives: • Rapanos is difficult to implement • An “opt-in” provision would be helpful

8. Evaluating the Guidance • Agencies’ response to implementation experiences and pubic comments being developed • Discussions to date focusing on targeted refinement of a few key issues • Likely to clarify some points, processes: • Further discuss TNWs, adjacency • “Opt-in” to jurisdiction • Both minor guidance revisions, and supplements to guidance possible

9. Key Guidance Issues Being Discussed • Traditional Navigable Waters • How far beyond Section 10 (RHA) do they extend ? • What factors are most relevant? • Adjacent Wetlands • What factors determine if a wetland is “adjacent” • Hydrologic Characterization of Stream Segments • How should a stream segment that does not have the same flow regime throughout be characterized (TNW, RPW, non-RPW)?

10. Key Guidance Issues Being Discussed, cont.... • Other CWA Programs • How should JD requests that either do not pertain to Section 404, or have clear implications to non-Section 404 CWA authorities be administered (Corps, EPA and State roles)? • Preliminary JDs • If a section 404 applicant is willing to address all aquatic resources as jurisdictional, can the final JD be waived?

11. January 08Revised Interagency Coordination • Isolated (a)(3) waters: • process unchanged, with review by field and HQ of all draft JDs. • Significant nexus-related JDs: • Corps gives Regions 15 days to review significant nexus-related JDs, work out concerns where possible, and special case if important differences remain. • Special case: EPA does JD or resolves policy., per 1989 MOU.

12. Review of draft JDs: Some Statistics • June 07-January 08: some 19,000 JDs finalized • Review at HQ • 1,643 total JDs reviewed at HQ as of June 13, 89% of which are a(3). • 128 JDs elevated under the June 07 MOA • Nine special cases sought since Jan. 2008 • Four case-specific and two policy special cases were granted • Two case-specific special cases resolved with EPA memorandum

13. Rapanos-Related Litigation • Many post-Rapanos legal challenges • As of May, 7 appellate decisions, 17 district court (4 under appeal), 6 petitions for review rejected by Supreme Court with 2 pending. • Courts split on whether Kennedy or Scalia test applicable, or just Kennedy (none say only Scalia) • Approximately 25 cases currently in litigation. • We’ll likely be back before the Supreme Court on the issue of “waters of the US”

14. Challenge of Rapanos • Scalia and Kennedy standards use jurisdictional terms different from those typically used by aquatic scientists. • “Relatively permanent” • “Continuous surface connection” • “Significant nexus” • “Similarly situated” • Challenge: does a particular water have the characteristics called for by the legal terms, as defined by the agencies and the courts?

15. For Additional Information EPA website http://www.epa.gov/owow/wetlands Corps website http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm Donna Downing (202) 566-1367 Downing.donna@epa.gov Jennifer Moyer (202) 761-4599, (206) 764-5526 Jennifer.a.moyer@usace.army.mil