U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

Special Report 

Congressionally Requested Report 

on Comments Related to Effects of 

 Jurisdictional Uncertainty on 

Clean Water Act Implementation 

 Report No. 09-N-0149 

 April 30, 2009 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL 

April 30, 2009 

The Honorable James L. Oberstar 

Chairman 

Committee on Transportation and Infrastructure 

U.S. House of Representatives 

Washington, DC 20515 

Dear Mr. Chairman: 

This is in response to your request dated April 24, 2009, asking that the Office of 

Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA) provide 

information we have collected on the impact of the Rapanos case on Clean Water Act (CWA) 

enforcement. 

As discussed with your staff, the OIG is conducting an evaluation of the effectiveness of 

EPA’s identification of violations of Section 404 of the CWA that fall under its enforcement 

authority. We are not evaluating the impacts of the Rapanos decision on EPA’s enforcement of 

the CWA. During our work, OIG evaluators visited EPA Headquarters and six regions, seven 

U.S. Army Corps of Engineers’ Districts, and six States. During those visits the topic of Rapanos 

came up in some of our meetings. Although the subject was not the focus of our evaluation, the 

comments were documented in our working papers. I am providing you a compilation of those 

comments by organizational location. I caution that this information was not verified or 

substantiated by us nor did we analyze its content or draw any conclusions from it. 

Thank you for your interest in our work. Should you have any questions on this report, 

please contact Wade T. Najjum, Assistant Inspector General for Program Evaluation, at 

(202) 566-0827. 

 Sincerely,

 Bill A. Roderick 

 Acting Inspector General 

Attachment 
09-N-0149 

Comments Related to Effects of Jurisdictional 

Uncertainty on Clean Water Act Implementation 

During our interviews, while conducting the wetlands enforcement evaluation, the U.S. 

Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, and State wetlands 

staff spoke about a variety of impacts to their programs caused by the Rapanos decision 

(Rapanos v. United States). Included below are excerpts from our interviews, which we have 

grouped by location. This information was not verified or substantiated by Office of Inspector 

General (OIG). The OIG did not analyze its content or draw any conclusions from this 

information. 

EPA Headquarters 

The following comments were from an interview with the Director, Office of Enforcement and 

Compliance Assurance (OECA), Wetlands Enforcement Division, and his staff. 

•	 Prior to the Rapanos decision OECA was relatively uninvolved in Section 404 cases. 

However, more EPA Regions are now referring cases to Headquarters for review. Unlike 

other Clean Water Act (CWA) programs, Headquarters cannot initiate a Section 404 

case; instead, it just processes referrals from the EPA Regions. Follow-up for consent 

decrees and other enforcement actions are handled at the regional level. 

•	 Rapanos has been a major resource drain for the program, far more so than SWANCC 

(Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers). It has 

not necessitated a change in program direction. 

•	 Rapanos has created a lot of uncertainty with regards to EPA's compliance and 

enforcement activities. Processing enforcement cases where there is a jurisdictional issue 

has become very difficult. 

•	 There is a definitional issue that resulted from the Rapanos decision concerned with the 

meaning of the words "Traditionally Navigable Water" and "Adjacency." The Office of 

Wetlands, Oceans and Watersheds is running a workgroup, which also involves OECA, 

the Council on Environmental Quality, the Army Corps of Engineers, the Office of 

General Counsel, and other agencies, to address this issue. An Attorney, Water 

Enforcement Division, noted that the Office of Management and Budget is trying to 

restrict the definition of "traditionally navigable waters." 

•	 What constitutes incidental fallback is now decided on a case-by-case basis, as it was in 

1998 (i.e., EPA is revoking "Tulloch 2"). However, these definitional issues are 

insignificant compared to current issues with jurisdictional determination brought about 

by the Rapanos/Carabell decisions. 

•	 Overall, CWA enforcement activities (for Sections 311 (oil spills), 402 (National 

Pollutant Discharge Elimination System), and 404) have decreased since the Rapanos 

ruling. An estimated total of 489 enforcement cases (Sections 311, 402, and 404 

combined) have been affected such that formal enforcement was not pursued as a result 

of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional 

uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an 

enforcement action. 

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•	 OECA described the judicial referral process as "working well." It is rare for the 

Department of Justice to send a case back to an EPA Region for administrative action. In 

the wake of Rapanos, however, it has become "almost impossible" for EPA to refer a 

case to the Department of Justice on "significant nexus" grounds. Lingering uncertainty 

over the limits of Federal jurisdiction has made the Department of Justice reticent to 

accept referrals wholly on these grounds. 

•	 Staff also stated that the Department of Justice is "willing" to take CWA Section 404 

cases, in principle, but they are often loathe to right now because of the lingering 

jurisdictional uncertainties associated with Rapanos. However, the Regions erroneously 

see the Department of Justice as "unwilling" to take any CWA Section 404 cases. 

The following comments were from an interview with Office of Water, Office of Wetlands, 

Oceans and Watersheds (OWOW) staff, including the Acting Chief, Wetlands Strategies and 

State Programs Branch, and the Chief, Wetlands and Aquatic Resources Regulatory Branch. 

•	 OWOW is working with the Office of Research and Development (ORD) on a number of 

jurisdiction-related issues, including the use of scientific data to address the concepts of 

stream flow and significant nexus such that relatively few analytical observations may be 

applied across multiple jurisdictional cases in an effort to expedite the post-Rapanos 

jurisdictional determination. 

•	 The Federal regulations governing State program assumption under Section 404(c) of the 

CWA have not been updated in the wake of Rapanos, though they are sufficiently broad 

that the regulations, themselves, may not need updating. The Acting Chief, Wetlands 

Strategies and State Programs Branch noted that OWOW also made an attempt to 

develop guidance for the regions on State assumption, but that has not occurred. Instead, 

EPA Headquarters provides the regions with a "script" for State/tribal assumption. 

OWOW feels the Rapanos implementing guidance needs to be better defined before it 

can revise the "script" to reflect Rapanos considerations. Typically, State assumption is a 

separate guidance discussion from Rapanos. 

•	 It has been difficult for EPA to craft jurisdictional determination guidance that is both 

legal and usable for field staff. For instance, many streams have no U.S. Geological 

Survey gauging data. In response, OWOW is partnering with ORD on a method that will 

turn daily field observations into something that can serve as the basis for a defensible 

decision about the stream's ephemerality. Ideally, one would need several years of biotic 

observations before he/she could really determine whether a "significant nexus" exists. 

Since the Army Corps of Engineers cannot conduct 130,000 jurisdictional determination 

field visits, some intermediate approach is preferable. 

•	 Currently, significant nexus calls are settled at the regional level. The region has 15 days 

to look at the draft jurisdictional determination and most nexus calls are resolved within 

this period. If EPA still has issues, it follows the procedure for "Special Cases" 

established in the 1989 Memorandum of Agreement between EPA and the Army Corps 

of Engineers. If the Regional Administrator classifies a jurisdictional determination as a 

"special case," the Army Corps of Engineers must stand down for 10 days and defer the 

jurisdictional determination to EPA. There have been nine special case requests, six of 

which have been granted. 

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The following comments were from an interview with two staff attorneys of the Office of 

General Counsel (OGC), Water Law Office. 

•	 The OGC is very involved with litigation associated with Army Corps of Engineers' 

actions, especially the coordination of briefs between the two agencies. OGC helps the 

Army Corps of Engineers assess the legal ramifications of asserting jurisdiction in certain 

contexts in the post-Rapanos environment. Often, OGC advises the Army Corps of 

Engineers on whether more information is needed to support a position in a particular 

case. 

•	 Traditional navigable waterways evade easy definition; even the Supreme Court has been 

vague on the precise scope of traditional navigable waterways. Traditional navigable 

waterways have arisen in multiple legal contexts over the years, not just in CWA 

discussions. Many stakeholders find the Appendix D definition to be still too broad to 

adequately serve the jurisdictional issues created by the Rapanos decision. The OGC 

attorneys noted that there had been considerable discussion about the scope of traditional 

navigable waterways in Fall 2007. Traditional navigable waterways continue to be an 

issue in some "isolated (a)(3)" elevations. 

•	 Adjacency was not addressed by the Supreme Court. Although there are 1-2 sentences 

on it in the interim June 2007 guidance, it remains an imprecise term. However, OGC 

staff is working with various program offices to create a follow-up to the June 2007 

Rapanos guidance where adjacency, among other things, will be addressed. The real 

debate involves the interpretation of one aspect of the "adjacency" definition: 

"neighboring." This "neighboring" term was a cornerstone of the debate in the Carabell 

case. 

•	 There have been close to 50 post-Rapanos cases: a pretty significant increase over prior 

case loads. Many cases have histories stretching back before the Rapanos ruling. The 

Circuit courts have been deciding, with varying opinions, whether the Kennedy, Scalia or 

both tests hold in establishing CWA jurisdiction. 

•	 Although Rapanos has "trumped everything," OGC is engaged in some other Section 

404-related work. 

•	 The 11th Circuit Court of Appeals (Atlanta) recently held that only the Kennedy test 

applies, even though the plurality's test is easier to apply. The 7th and 9th Circuits, 

meanwhile, have used Kennedy's opinions. Both EPA and the Department of Justice 

hope that either the plurality or Kennedy tests can be applied in Section 404 jurisdictional 

decisions. Prior to Rapanos, the 5th Circuit had taken a more restrictive reading of CWA 

jurisdiction. 

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EPA Regions 

Region 1 

•	 According to the Acting Manager, Legal Enforcement Office, Office of Environmental 

Stewardship, EPA Region 1, legal resources in EPA Region 1 are much tighter and have 

been in decline, and the SWANCC and Rapanos fallouts have severely exacerbated this; 

some cases have not yet been assigned to lawyers (cases need to be prioritized with other 

environmental media as well). 

	 He said that EPA Region 1 has a strong team of jurisdiction experts. 

	 He said that EPA Region 1 recently held two sessions of Rapanos training 

in mid-February 2009, and sent it out as a webinar for people throughout 

the country. 

Region 3 

•	 The Associate Director, Environmental Assessment and Innovation Division, EPA 

Region 3, said Region 3 resources have remained steady post-Rapanos and he is trying to 

assure that the resource base remains steady. 

	 He said that today it is more difficult to prove a jurisdictional relationship 

between wetlands and "Waters of the U.S" and more effort is needed to 

put a case file together. EPA Region 3 considers itself lucky because it 

has water; it is easy to follow the hydric soils and vegetation to establish a 

connection to water. 

	 He said that in EPA Region 3, wetlands cases in the Fourth Circuit of 

Appeals are based on the Wilson decision, which does not recognize 

isolated waters as waters of the United States. Within Region 3, 

Maryland, Virginia, and the lower half of West Virginia are located in the 

Fourth Circuit of Appeals. The Fourth Circuit of Appeals decision to 

follow Wilson has not affected wetlands resources that much because these 

States regulate isolated waters under their State programs. 

•	 The Stormwater Team Leader, Office of NPDES Permits and Enforcement, EPA Region 

3 stated that the “Rapanos effect” has not affected the pursuit of joint (Section 402/404) 

cases; it just takes more work to process them. 

Region 4 

•	 A staff member from Wetlands Enforcement Section, Clean Water Enforcement Branch, 

EPA Region 4, said that Rapanos has raised the bar on establishing jurisdiction. Even if 

Rapanos were to "go away" the likelihood exists that conducting jurisdictional 

determinations will require more data and expertise than before. 

	 He has provided extensive training within Region 4 on Section 404 to 

Section 402 staff and legal counsel. This training has also been shared 

with the 10 Army Corps of Engineers Districts that work within Region 4. 

•	 The Chief, Office of Water Legal Support, Office of Environmental Accountability, EPA 

Region 4, said that generating the referrals to the Department of Justice is time 

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consuming; it easily takes 1 full-time equivalent several months working full-time on the 

case to prepare the referral package. 

•	 The Chief, Clean Water Enforcement Branch (CWEB), EPA Region 4, stated that 

Section 404 enforcement was combined with National Pollutant Discharge Elimination 

System (NPDES) enforcement to form the CWEB in November 2008. This 

recombination was spurred by Rapanos and the associated introduction of jurisdictional 

issues into the NPDES program. Now, the Region’s Section 402 staff have to start doing 

jurisdictional determinations. In the past, it had been only typical for Section 404 staff to 

do jurisdictional determinations. 

Region 5 

• The Branch Chief, Watersheds and Wetlands Branch, EPA Region 5 said that EPA 

Region 5 has 1⁄4 full-time equivalents dedicated to reviewing Army Corps of Engineers 

jurisdictional determinations, but is probably using well over 1 full-time equivalent, not 

including training. He said that in a recent resources bid EPA Region 5 estimated that 

two additional full-time equivalents would be necessary for enforcement in the postRapanos world. The bid did not result in the requested resources. 

 He said that, as a result of Rapanos, more work and resources are required 

at all stages of processing an enforcement case. 

 He said that EPA is now required to review certain jurisdictional calls 

made by the Army Corps of Engineers where jurisdiction is in doubt and 

EPA Region 5 has had to conduct more reviews than any other Region. 

 He further stated that EPA Region 5 has recently overturned Army Corps 

of Engineers jurisdictional determination decisions, using its authority 

under the Civiletti Memorandum, because the agencies have disagreed 

over their jurisdictional status. For example, EPA Region 5 overrode the 

Army Corps of Engineers St. Paul District by exerting jurisdiction over 

some isolated lakes in Minnesota and Wisconsin. These disagreements 

often hinge on the agencies' understandings of proximity to traditionally 

navigable waters. 

 He said that a lot of EPA Region 5 surface waters that would be 

considered Aquatic Resources of National Interest by EPA (e.g., fens, 

bogs, dunes/swales) are seen as non-jurisdictional to the Army Corps of 

Engineers due to Rapanos and SWANCC. 

 He said that EPA's OECA has had to conduct CWA Jurisdiction webinars 

for Section 402 and 311 personnel, since Rapanos has created new issues 

for these programs. 

	 He said Region 5's Watersheds and Wetlands Branch management team 

met with the Army Corps of Engineers St. Paul District to review which 

cases the Region would accept from the Corps. This was done because the 

effects of the Rapanos decision on EPA Region 5 enforcement cases were 

significant in the short run (an increase in staffs' case review time). EPA 

Region 5 has offered this review to two other Army Corps Districts, but as 

of December 2008 there has been no date set for this encounter. 

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	 He said that, since Rapanos, the Department of Justice requires more 

jurisdictional evidence than necessary for enforcement cases. Even after 

EPA Region 5 has successfully established jurisdiction without a nexus 

test, the Department of Justice requests a nexus justification anyway. The 

Deputy Branch Chief, Watersheds and Wetlands Branch, EPA Region 5 

added that, in their understanding, this is the case nationally. This may 

also cause Statute of Limitations issues. 

	 He said that, in some cases, the Department of Justice has had to provide 

assistance to EPA regional enforcement personnel by hiring consultants to 

assist in the accumulation of jurisdictional evidence. 

	 He said that, even before an enforcement action is taken, it is now more 

likely that enforcement cases will have to go to an administrative hearing 

due to Rapanos. 

•	 The Deputy Branch Chief, Watersheds and Wetlands Branch, EPA Region 5 supplied the 

following numbers related to EPA's required reviews of Army Corps of Engineers 

jurisdictional determinations. Of the 654 jurisdictional determinations, 206 were 

significant nexus (i.e. Rapanos) calls, of which 28 were found to be non-jurisdictional, 

and 450 isolated (i.e. SWANCC) calls, of which 449 were found to be non-jurisdictional. 

	 She said that, in addition to spending more time preparing a case, the 

Rapanos significant nexus requirement puts EPA Region 5 in a situation 

where it has to collect more intensive data. 

• An Associate Regional Counsel, EPA Region 5 said that Regional Counsel is requiring 

significant nexus determinations (and the associated resource demand) for all 

enforcement cases, regardless of necessity, in anticipation that other Circuit Courts would 

adopt the Seventh Circuit's stance that the significant nexus is the only acceptable 

Rapanos test. Another Associate Regional Counsel, EPA Region 5 added that it has 

become necessary to meet the toughest legal standard. 

 He said that it appears as though Section 402 may be vulnerable to 

jurisdictional issues as well. Another Associate Regional Counsel, EPA 

Region 5 said that, due to the Rapanos decision, a conveyance between a 

Section 402 discharge source and the receiving "Water of the U.S." has to 

be verified. In other words, this is another nexus determination. Now, 

when a Section 402 issue arises, EPA Region 5 has to walk the entire 

nexus in order to establish the connection. This is difficult to do when 

dealing with large distances through multiple properties and unfriendly 

terrain. 

 He said that there has been at least one instance in EPA Region 5 where it 

could not process a Section 402 violation (which would have been 

processed pre-Rapanos), because they could not establish a nexus. 

	 He said that there were jurisdictional issues for enforcement in most EPA 

Region 5 States, where State-level wetlands enforcement is lacking. 

Michigan is the only EPA Region 5 State with a decent enforcement 

program. 

•	 An Associate Regional Counsel EPA Region 5 said that, in combination with Rapanos, 

the Environmental Appeal Board's Bricks decision (2003) is requiring that EPA "walk the 

water" (i.e., field verify all applicable significant nexus connections) to establish 

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significant nexus in all CWA cases, which can be very difficult to do without trespassing. 

EPA Region 5 lost one case before the Environmental Appeal Board because no one 

walked property, i.e., the wetland near Interstate 88 in Illinois. 

	 He said that the Rapanos ruling is downplaying the environmental 

importance of smaller waters, such as headwater streams, since 

jurisdiction only exists when a tie-in to prominent aquatic features is 

established. Another Associate Regional Counsel, EPA Region 5 added 

that the Rapanos jurisdiction standards depend on permanence of stream 

flow, and there is currently no standard stream flow assessment 

methodology. 

	 He said that Rapanos' biggest impact to jurisdiction is out in the arid West, 

where it is comparatively difficult to prove significant nexus. 

•	 The Associate Branch Chief, Office of Regional Counsel, EPA Region 5 said that the 

increased case preparation time causes cases to get "stale" over time, which can adversely 

affect enforcement outcome. 

•	 The Section Chief, Office of Regional Counsel, EPA Region 5 said that all Section 402 

issues are with Concentrated Animal Feeding Operations (CAFOs), where individuals are 

announcing that they will not reapply for Section 402 permits because they feel that the 

Rapanos decision has removed their CAFO from CWA jurisdiction. 

•	 An Associate Regional Counsel, EPA Region 5 noted that differing evidentiary 

requirements among Circuit Courts of Appeals is sometimes affecting enforcement 

outcome: for instance, in one case Region 5's Office of Regional Counsel (ORC) had a 

better argument for jurisdiction under the Scalia test than under the Kennedy test. 

However, ORC will have to use the Kennedy test, because the case took place in the 7th 

Circuit, where Kennedy is the accepted standard. 

•	 A staff member of the Watersheds and Wetlands Branch, EPA Region 5 said that, after 

Rapanos, EPA Region 5 had to re-evaluate jurisdictional determinations for pending 

enforcement cases that were conducted prior to the Supreme Court decision. 

•	 An attorney from the Office of Regional Counsel, EPA Region 5 said that it is hard to see 

if Rapanos would have affected one of its cases, but it could have been more time 

consuming to establish jurisdiction. However, EPA Region 5 did have to conduct a postSWANCC evaluation for this case to establish proximity to a tributary. 

•	 An Enforcement Officer, Watersheds and Wetlands Branch and an attorney from the 

Office of Regional Counsel, EPA Region 5 personnel said that it was necessary for the 

federal government to use SWANCC arguments to substantiate jurisdiction in a case that 

predated Rapanos. They added that the Army Corps of Engineers St. Paul District, may 

also have performed a significant nexus analysis in this case. 

•	 According to a staff member of the Watersheds and Wetlands Branch, EPA Region 5, 

Rapanos-related jurisdictional issues were why the violators in three related cases "got 

off so easily." He said that it was difficult to establish a nexus by measuring stream flow 

in coal caverns. 

•	 An Enforcement Officer, Watersheds and Wetlands Branch and an attorney from the 

Office of Regional Counsel, EPA Region 5 said that in one case the violator's attorney 

tried to argue against jurisdiction in the aftermath immediately following the Rapanos 

decision, but was unsuccessful. 

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Region 7 

•	 A staff member of the Water Enforcement Branch, EPA Region 7 noted that some Army 

Corps of Engineers Districts are referring fewer Section 404 cases post-Rapanos. She 

speculated that Army Corps staff may be preoccupied with jurisdictional determinations 

and permits. 

	 She stated that she believes there will be more informal enforcement 

actions because of the Rapanos decision. She indicated that EPA Region 

7 does not have sufficient resources to make jurisdictional determinations. 

•	 A staff member of the Water Enforcement Branch, EPA Region 7 said that when EPA 

Region 7's construction stormwater inspectors first visited the site of one case to followup on a report of a possible Section 404 violation, the inspectors could only list a 

potential nexus in their report. An attorney from the Office of Regional Counsel, EPA 

Region 7 reported that she had to establish that the affected water was jurisdictional 

before she could tell the inspector that there was a Section 404 violation at this site. 

Region 8 

•	 The Chief, Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 noted that 

Region 8's Wetlands Unit still had about five full-time equivalents, the same amount of 

staff as it had pre-Rapanos ,despite an increase in its responsibilities post-Rapanos, e.g., a 

new requirement to collaborate with the Army Corps of Engineers on jurisdictional 

determinations after June 2007. 

	 He stated that his unit has no guidance or approach for non-404 

jurisdictional determinations, though they are trying to coordinate with 

other Regions. He also indicated that some Corps office managers were 

completely ignoring the June 2008 regulatory guidance letter on 

preliminary jurisdictional determinations 

•	 EPA Region 8 Water Technical Enforcement Program staff said the region has hired 

three consultants to deal with Rapanos issues on cases in the Sioux Falls, South Dakota 

area; in the absence of Rapanos, none of these consultants would have been necessary. 

•	 The Acting Deputy Assistant Regional Administrator, EPA Region 8 estimated that it 

takes EPA Region 8 as much as three times longer to process a case post-Rapanos. This 

has also reportedly made things more difficult when dealing with the Department of 

Justice. 

• The Director, Water Technical Enforcement Program, EPA Region 8 added that a 

significant nexus determination is necessary in almost every case. Only 17 percent of 

Region 8's waters are perennial, so there are considerable amounts of nexus tie-ins. 

 She noted that Region 8 is now walking the nexus for every applicable 

CWA section (e.g., Section 311, 402 and 404 cases). 

 She stated that, in some instances, EPA has to do a considerable amount of 

extra work to support CWA jurisdiction for cases in litigation. 

	 She reported that a lot of the cases that were in progress at the time of the 

Rapanos decision received milder settlements than they would have 

otherwise because of the accompanying jurisdictional uncertainty. 

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	 She indicated that there were a few situations in EPA Region 8 where 

violators, citing Rapanos, unsuccessfully tried to avoid fulfilling the terms 

of their consent decrees. 

	 She stated that, just after Rapanos, there was a "logjam" at the Army 

Corps of Engineers. EPA Region 8 was not receiving any new referrals 

because the Army Corps was trying to figure out what it was going to do 

with permits. Now that things have cleared out, EPA Region 8 has been 

receiving a lot of Army Corps of Engineers referrals. 

	 She stated that the Rapanos decision was sufficiently oblique that the 

resulting guidance requires a lot of analytical data, much of which does 

not exist in the West. 

	 She noted that, relative to Section 402 cases, where there is at least some 

proximity to a surface water, storage tanks can be quite far away from 

“Waters of the United States.” The Region often faces more challenges 

with establishing nexus under OPA the Oil Pollution Act (OPA) than it 

does under other Sections of the Clean Water Act. 

•	 An attorney, Legal Enforcement Program, EPA Region 8 indicated that some issues 

related to the documentation of isolated waters (per the SWANCC decision) had 

complicated EPA Region 8's referral to the Department of Justice. 

•	 Water Technical Enforcement staff indicated that the violator in one of its cases tried to 

use Rapanos in its defense. Although, in the end, the arguments did not hold, the violator 

did succeed in prolonging the case's penalty phase. EPA Region 8 had to reference data 

on traditionally navigable waters and relatively permanent waters during the settlement 

negotiations. 

•	 A Staff Attorney, Office of Regional Counsel, EPA Region 8 noted that EPA Region 8 

has a lot of ephemeral streams, as well as streams which exhibit perennial flow relatively 

close to the headwaters. However, after miles of irrigation and other supply demands, 

these streams actually become more ephemeral further downstream. She indicated that 

the EPA was currently grappling with whether flow could be used to establish a 

significant nexus for certain waters. She described the "Badger Gulch" jurisdictional 

determination that EPA Region 8 had elevated to EPA Headquarters. The case concerns 

the contribution of flow considerations to a significant nexus decision. 

	 She added that, especially in western States, it is too difficult to break 

jurisdictional determination calls down into isolated and significant nexus 

calls. 

• A staff member from the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 

noted that EPA Region 8 has lots of borderline "ephemeral" features such as vernal pools 

and playa lakes. 

 She said that EPA Region 8 has issues with prairie potholes where the 

Army Corps of Engineers will not accept the sub-surface connections. 

The Army Corps of Engineers is unwilling to assert jurisdiction because of 

a lack of site-specific evidence. However, EPA Region 8 feels that it is 

possible to assert jurisdiction based on general patterns of prairie pothole 

sub-surface connectivity. 

	 She stated that EPA Region 8 has lost a lot of surface waters to Rapanos. 

The Chief, Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 

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followed with some additional information showing that the Army Corps 

of Engineers Districts operating in EPA Region 8 (Sacramento, Omaha 

and Albuquerque) failed to assert jurisdiction in nearly 72 percent of their 

jurisdictional calls between June 2007 (the date that the initial Rapanos 

guidance was released) and August 2008. SWANCC, not Rapanos, was 

cited as the basis for the lack of federal jurisdiction on 88 percent of these 

non-jurisdictional determination calls. 

•	 Several staff from EPA Region 8 and the Army Corps of Engineers Omaha District noted 

that the federal government must often reach a higher jurisdictional standard on Section 

404 enforcement actions than it does on permitting decisions. 

•	 Another staff member of the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 

noted that the Army Corps of Engineers has been in the habit of calling waters "isolated" 

simply because there is no surface connection. However, some of these waters may still 

have a sub-surface connection. Shallow sub-surface connections are important in some 

contexts. There are consistent fluctuations between waterbodies in dune environments, 

for instance. Sub-surface connections are pervasive in the San Luis Valley of Colorado. 

•	 A staff member of the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 

reported that the States in EPA Region 8 have very weak wetlands programs. Another 

staff member of the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 added 

that State programs in Region 8 have little to no State or federal funding. 

•	 The Deputy Regional Counsel, EPA Region 8, indicated that, because the Region has a 

large amount of energy development, it has significant OPA issues. Nexus to surface 

water bodies is critical in making jurisdictional determinations under OPA. He reported 

that the Region’s OPA program has found both a drop in spill reporting and a decrease in 

the submission of Facility Response Plans since Rapanos. In the wake of Rapanos, OPA 

jurisdiction has been especially in flux in Wyoming. 

•	 A staff member of the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 added 

that the Corps is finding that its authority is expanding because its jurisdictional decisions 

are affecting Clean Water Act Sections with which it had no previous involvement (e.g., 

Sections 311 and 402). 

Army Corps of Engineers Districts

 Rock Island 

•	 The Chief, Enforcement Section, Regulatory Branch, Rock Island Army Corps of 

Engineers District and the Chief, Regulatory Branch, Rock Island Army Corps of 

Engineers District said Rapanos has not really changed their jurisdictional extent, just the 

effort required to establish jurisdiction. The Rock Island District's workload has 

increased as a result, but not significantly. 

•	 They both said that Rapanos changed the effort required to establish jurisdiction. Rock 

Island District workload has increased as a result, but not significantly. 

•	 The Chief, Regulatory Branch, Army Corps of Engineers Rock Island District said that, 

unlike out West, the potential for Rapanos issues would not keep the Rock Island District 

from pursuing an enforcement action. 

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	 He said the Rock Island District is now experiencing difficulty 

establishing jurisdiction in headwater areas and in areas where jurisdiction 

was being asserted through upland-excavated ditches prior to Rapanos. 

•	 Army Corps of Engineers Rock Island District Regulatory Branch personnel reported that 

the SWANCC decision removed a considerable area from CWA jurisdiction. They stated 

that it has many farmed wetlands and prairie potholes; SWANCC removed both of these 

features from CWA jurisdiction. 

Savannah 

•	 The Chief, Northern Section, Regulatory Branch, Army Corps of Engineers Savannah 

District said the Rapanos decision has affected the Savannah District in that it takes more 

time to document jurisdictional determinations; and the review process for jurisdictional 

determinations now goes up to the Division Chief for the Regulatory Branch. 

	 He said making jurisdictional determinations is especially more time 

consuming for streams and isolated wetlands. 

Jacksonville 

•	 The Program Manager, Regulatory Division, Enforcement Branch, Army Corps of 

Engineers Jacksonville District feels that the only difference after the Rapanos decision is 

the need for more documentation, and she believes that this has somewhat abated as a 

result of the reinstatement of the Preliminary Jurisdictional Determination; if a permit 

applicant or violator agrees to accept all surface waters on a property as Section 404­

regulated waters and forego the Kennedy or Scalia tests, resolution is much faster. This 

usually works out to everyone's benefit. 

St. Paul 

•	 The Enforcement Coordinator, Regulatory Branch, Army Corps of Engineers St. Paul 

District reported that Rapanos has made enforcement cases much more difficult in that 

they have to assemble a considerable amount of data to prove significant nexus. The St. 

Paul District now goes beyond the 1989 Wetland Delineation Manual and brings hydric 

soils into almost all of its cases. 

	 He stated that the St. Paul District has gone from using two expert 

witnesses per case to 4, 5 or 6. 

Detroit 

The following comments were from an interview with Chief, Regulatory Branch, Army 

Corps of Engineers Detroit District and his staff. 

•	 Rapanos' main impact has been to increase the amount of time it takes the District to 

process Section 404 violations. 

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•	 EPA must reportedly limit its use of the Corps' jurisdictional language (e.g., the District 

believes that this water is a "relatively permanent water" per Rapanos) to their 

inspections. EPA cannot rely on the Corps' language when it conducts its own discovery. 

•	 Rapanos has only forced EPA Region 5 to drop one case, reporting that Region 5 was 

unable to take any action against the violator in Indiana because it was unsure whether it 

had jurisdiction. 

•	 Rapanos poses the biggest hurdle for waters away from the Great Lakes, especially if 

multiple types of waters are present on the same piece of property. 

Omaha 

•	 Army Corps of Engineers Omaha District staff stated that although Rapanos made 

jurisdictional determinations much more complicated (the form is eight pages long), the 

Army Corps of Engineers has benefited from the re-institution of preliminary 

jurisdictional determinations. Preliminary jurisdictional determinations are much 

simpler, making the jurisdictional decision more like it was pre-Rapanos. The Army 

Corps of Engineers is currently re-training people on how to do jurisdictional 

determinations for enforcement. 

•	 The Regulatory Project Manager, South Dakota Regulatory Office, Army Corps of 

Engineers Omaha District noted that the Army Corps of Engineers needs the "RPW" 

(relatively permanent water) on enforcement jurisdictional determinations, whereas a 

significant nexus analysis would suffice for a permitting jurisdictional determination. 

•	 The Enforcement Coordinator, Army Corps of Engineers Omaha District stated that 

Rapanos has made it more difficult to develop cases. 

	 He provided an example of how jurisdictional issues affect case referrals 

to EPA. He cited an enforcement case which began as a permit 

application: After its initial review, the Omaha District asked the applicant 

to perform a wetlands delineation in an "incomplete application" letter. 

Three months later, the Omaha District called the applicant to check up on 

the application and found that work had already been done. The Omaha 

District Project Manager wanted the violation sent to EPA Region 8 as a 

flagrant violation. However, the Enforcement Coordinator thought that 

the size of the violation was so small, probably qualifying under a 

Nationwide Permit, that EPA Region 8 would not take it. Instead, he 

decided to personally process the case, attempting to resolve it as an afterthe-fact Nationwide Permit 39 (for residential commercial and institutional 

developments) provided the violator sent the required additional 

information and mitigation plan. The additional information took 10 

months to arrive, and there was no restoration plan -- in fact, the developer 

hired an attorney to dispute the Omaha District's claim that the site was 

jurisdictional. He then threatened to send the case to EPA Region 8. 

However, Region 8's Office of Regional Counsel said there could be 

issues with jurisdiction. To bolster its claim, the Omaha District verified a 

significant nexus (60 miles to next traditionally navigable waters; only 

flows after rain; flows into a relatively permanent water). EPA Region 8 

agreed with the Omaha District's call and the violator was notified of the 

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agencies' decision to pursue the case. Now the applicant (who is the local 

sheriff) is trying to appeal jurisdictional determination, but his appeal 

might not work because EPA plans to take an enforcement action. All of 

this has taken a lot of time. 

	 He stated that there are some areas in eastern Colorado, as well as near 

Rapid City, South Dakota, where the Army Corps of Engineers would 

have claimed jurisdiction in the past. It is now much more difficult for the 

Army Corps of Engineers to claim jurisdiction. 

	 He noted that one of the Army Corps' biggest jurisdictional issues is tying 

surface waters to the nearest traditionally navigable water, especially in 

those instances where mudflow and alluvial fan deposits force surface 

water flow underground. In one example, a violation was 60 miles away 

from the nearest traditionally navigable water, and the connecting creek 

went underground for 5 miles en route to the traditionally navigable water. 

These jurisdictional challenges are a huge problem around Rapid City, 

South Dakota, where rapid development and alluvial fans are common. 

	 He noted that there are also areas in Wyoming and Colorado where the 

Army Corps of Engineers has had to a use significant nexus analysis 

because there is only infrequent flood flow. In the past, everyone just 

assumed that these areas were jurisdictional. 

	 He stated that there are related problems in the Salt Lake City area, where 

the Sacramento District hired the Omaha District to conduct a large-scale 

analysis of the mudflow deposits that are common to that area. 

	 He stated that the Omaha District has not taken two cases against large 

developers because of jurisdictional uncertainty. 

•	 A Counsel for the Army Corps of Engineers Omaha District stated that the last case the 

Omaha District filed with the U.S. attorney was pulled back because of Rapanos. He 

categorized the case as initially a "slam dunk," but then Rapanos came through and 

created jurisdictional issues. 

States 

Michigan 

•	 A staff member of the Michigan Department of Environmental Quality noted that the 

U.S. Army Corps of Engineers has been unable to get the U.S. Department of Justice to 

take criminal complaints in the wake of Rapanos. 

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Appendix A 

Distribution 

Office of the Administrator 

Acting Assistant Administrator for Enforcement and Compliance Assurance 

Acting Assistant Administrator for Water 

Acting Associate Administrator for Congressional and Intergovernmental Relations 

Acting Associate Administrator for Public Affairs 

Acting Inspector General 

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