# Presentation: 849129

## Implementing the Clean Water Act after Rapanos:  An Update

- FHWA Environmental Conference
- Washington, DC
- June 2008

## 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

- 11-07-07

## 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**
**	****	**

- 11-07-07

## 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

- 11-07-07

**Notes:**
First visit to the Supremes was Riverside Bayview in 1985:  emphasis on integrated aquatic ecosystem.

Then SWANCC
After SWANCC, 17 of 19 appellate decisions and virtually all of the remaining 40 lower court decisions found that SWANCC was narrow.  Then the Supreme Court granted cert in two of those appellate decisions, both from the 6th Circuit and having come from Michigan.

## 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.

- 11-07-07

**Notes:**
Rapanos:  Facts:  wetland with surface hydrologic connection to navigable-in-fact water, adjacent to non-navigable tributary
Carabell: Facts:  wetland behind a leaky berm but proximate to a ditch that drains to a navigable-in-fact water. 

## 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

- 11-07-07

## Comments on Rapanos Guidance

- 65,000 public comments under review to determine next steps (_[www.regulations.gov](http://www.regulations.gov/)__)_
- Many stakeholder sectors represented with diverse perspectives.
- Common perspectives:
*Rapanos* is difficult to implement
- An “opt-in” provision would be helpful

- 11-07-07

**Notes:**
Of the 65,000 public comments submitted 1,200 were unique letters.

## 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

- 11-07-07

## 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)?

- 11-07-07

**Notes:**
If Q&As ask about the details of “issues being discussed,” say discussions are ongoing and we can’t really say.

## 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?

- 11-07-07

## January 08Revised 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.

- 11-07-07

**Notes:**
It is important that, through the new coordination process, we ensure good communication with Corps Districts, States and other CWA programs.

## 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

- 11-07-07

**Notes:**
Of the 128 elevated to HQ:
-- 23 resolved with Joint memorandum from HQ
-  2 with unilateral EPA determination
-- Remainder raise similar key issues under discussion

If asked:  Possible reasons for lower JD finalization rate:  economy, guidance “start-up” impacts, seasonality, because Russ isn’t opening his mail.

## 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”**

- 11-07-07

## 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?**

- 11-07-07

**Notes:**
Key field questions after Rapanos include:  does a water have characteristics that address the legal standard?   For example:
A water’s contribution to physical/chemical/ biological integrity downstream
A water’s frequency and volume of flow
Data on other waters and wetlands in the area?

Main points for this slide:
--  Decision if particular water has characteristics required to be jurisdictional would ideally be based on multiple-year observations, but neither field staff nor the regulated community can wait that long.
--  Scientific analyses and technical info can assist field staff to defensibly leverage observations.  

## 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