US Army Corps of Engineers BUILDING STRONG

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1 US Army Corps of Engineers

2 Clean Water Act Jurisdictional Discussion for the Council of State Governments Presented by: Stacey M. Jensen HQUSACE Regulatory CoP Donna Downing USEPA HQ 21 February 2013 US US Army Army Corps Corps of Engineers of

3 Bottom Line Up Front The Clean Water Act 2008 Guidance is still the current method for jurisdictional determinations.

4 Regulatory Mission To protect the Nation s aquatic resources, while allowing reasonable development through fair and balanced decisions.

5 Why Waters of the US Matter Navigable Waters: Waters of the U.S., including Territorial Seas 303 Water Quality Standard & TMDLs States Tribes EPA FWS 311 Oil Spill Programs EPA 401 State Certification States Tribes EPA 402 Pollutant Discharge Permits States EPA 404 Dredge and Fill Permits USACE States EPA 5

6 CWA Section 404 Army Corps of Engineers administers discharges of dredged or fill materials into jurisdictional waters under Section 404, and makes the majority of jurisdictional determinations. However, the Environmental Protection Agency oversees implementation of all CWA programs, including Section 404. EPA has specific responsibilities, such as state assumption and scope of waters of the U.S. 6

7 CWA Section 404: A Short History 1972: Enacted. 1975: NRDC vs. Calloway. WUS broader than navigable. 1977: Regulation & Congressional Amendments. 1979: Civiletti decision on CWA authority. EPA lead. 1985: SCOTUS in Riverside Bayview Homes. Adjacent wetlands. 1986: Migratory Bird Rule ; most recent version of consolidated regulations issued. 2001: SCOTUS in SWANCC v. USACE. Isolated waters. 2003: Advance Notice of Proposed Rulemaking. 2006: SCOTUS in Rapanos & Carabell. Adjacent wetlands and tributaries : Rapanos guidance issued and revised. 2013: Working draft guidance. 7

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9 Waters Subject to CWA Programs 33 CFR part 328.3(a) Current regulations define waters of the U.S. (WUS) as including waters that are: Traditionally navigable (TNWs) Interstate Could affect interstate commerce if used, degraded, or destroyed Impoundments of jurisdictional waters Tributaries of jurisdictional waters Territorial seas Wetlands adjacent to jurisdictional waters Excludes waste treatment systems and prior converted cropland 9

10 1985: Riverside Bayview Homes Wetlands adjacent to Traditional Navigable Waters are jurisdictional even if not appear to be navigable in the traditional sense 10

11 1986 Migratory Bird Rule All waters [w]hich are or would be used as habitat by migratory birds covered by international treaties, by migratory birds that otherwise cross state lines, or by endangered species, as well as waters used to irrigate crops sold in interstate commerce are jurisdictional waters. Preamble language, not a rule. 11

12 2001: Solid Waste Agency of Northern Cook County (SWANCC) vs. USACE. Supreme Court Decision: Corps determined CWA jurisdiction over abandoned gravel pits by use of Migratory Bird Rule (MBR) based on blue heron use of ponds. Reasoning: CWA intended some connection to navigability. Has implications for all CWA programs, not just 404. Corps cannot regulate isolated wetlands based solely on the Migratory Bird Rule. 12

13 SWANCC Jurisdictional Issues How Far Upstream Migratory Bird Rule Hydrology: Overflows during rain events? Perennial Ephemeral Intermittent Erosional Features Sheet flow or snowmelt Adjacent Wetlands: Proximity or Hydrology Hydrology: Direct & immediate subsurface infiltration (not groundwater)? No connection to Aquifer Ditches? Subsurface Flow (discrete)? Proximity: How far? How many berms? Groundwater (non-discrete)? Pipes? Sheet flow over upland? Pumps? Aquifer Storm Drain Systems? Included as Tributaries / Waters of U.S. 13

14 2006: U.S. Supreme Court Decisions Rapanos. Determine if wetlands having a surface hydrologic connection to a manmade ditch that drains into traditional navigable waters are waters of the U.S. Carabell. Determine if a wetland is adjacent if separated by a man-made berm from a tributary (i.e., a man-made ditch) to navigable waters. 14

15 Rapanos & Carabell The justices issued five opinions in Rapanos, with no single opinion commanding a majority of the Court. A split Supreme Court vacated and remanded the judgments back down to the Sixth Circuit Court of Appeals. 15

16 Rapanos Decisions Plurality concluded...jurisdiction over waters connected to TNWs that flow at least seasonally, and to wetlands with a continuous surface connection to such waters. Kennedy concluded that waters are WUS, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of navigable waters. 16

17 Rapanos Guidance: Plurality Test Relatively Permanent Waters (RPWs) Perennial Waters Intermittent Waters where the flow is seasonal, for example, three months Corps Policy Decision to back analysis with significant nexus evaluation Wetlands Directly Abutting RPWs 17

18 Rapanos Guidance: Kennedy Test Significant nexus evaluation: An assessment of the flow characteristics and functions of the tributary, itself, in combination with the functions performed by any wetlands adjacent to the tributary. To determine if they have more than an insubstantial or speculative effect on the chemical, physical or biological integrity of TNWs. 18

19 What Waters are Involved? adjacent wetlands non-tnw tributaries Rapanos traditional navigable waters (TNWs) adjacent wetlands Riverside SWANCC other ( isolated ) waters BUILDING 19 STRONG

20 Traditional Navigable Waters (TNWs) Yellowstone River, MT Pacific Ocean, OR 20 TNWs are jurisdictional under the CWA

21 Wetlands Adjacent to TNWs Mississippi River, MN Pacific Ocean, HI Mississippi River, LA Wetlands adjacent to TNWs are jurisdictional under the CWA 21

22 Relatively Permanent Waters (RPWs): Perennial & Seasonal RPWs are jurisdictional under the CWA. As a matter of policy, include in the record any available information that documents the existence of a significant nexus between a TNW and an RPW that is not perennial. 22

23 Wetlands Directly Abutting RPWs Unnamed water & wetlands, AK Unnamed water & wetlands, ND Wetlands directly abutting RPWs that flow directly or indirectly into TNWs are jurisdictional under the CWA. As a matter of policy, field staff will include in the record any available information that documents the existence of a significant nexus for a wetland directly abutting an RPW that is not perennial. 23

24 Wetlands Not Directly Abutting RPWs Un-named water & wetlands, IL Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs are jurisdictional under the CWA where there is a significant nexus with a TNW. 24

25 Non-RPWs Unnamed ephemeral tributary, ID Desert ephemeral tributary, CA Non-RPWs are jurisdictional under the CWA where there is a significant nexus with a TNW. Significant nexus evaluation to determine if tributary in combination with its adjacent wetlands (if any) is jurisdictional under the CWA. 25

26 Wetlands Adjacent to Non-RPWs Adjacent wetland, AR Adjacent wetland, SAD Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs are jurisdictional under the CWA where there is a significant nexus with a TNW. 26

27 Non-Jurisdictional Waters Certain geographic features generally are not jurisdictional waters: swales, erosional features (e.g. gullies) and small washes characterized by low volume, infrequent, and short duration flow, farm ponds ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water uplands transporting overland flow generated from precipitation (i.e., rain events and snowmelt) waters that lack a significant nexus where one is required for CWA jurisdiction to apply Regulation excludes jurisdiction over waste treatment systems and prior converted croplands 27

28 Ditches, Swales, Erosional Features 28

29 Isolated Waters & Wetlands Isolated wetland, IA For each specific request for isolated waters (including isolated wetlands), field staff will need to make a case-by-case determination on jurisdictional status of resource. HQ concurrence required. 29

30 Difficulties with Current Regulations Regulation does not include definitions for many terms such as, tributary, significant nexus. Regulations do not reflect all features that historically have been considered nonjurisdictional. 30

31 Previous Statements Made on Jurisdiction Discover Magazine September 2008 (Senator Obama) I am troubled by recent court rulings that have confused rather than clarified federal jurisdiction over waters of the United States, including environmentally sensitive wetlands critical to maintaining supplies of clean freshwater. I will support efforts to ensure that federal protection of the nation s waters is strengthened, not weakened. Administration Views Letter May 2009 (Sutley, Jackson, Salazar, Salt, Vilsack) It is essential that the Clean Water Act provide broad protection of the Nation s waters, consistent with full Congressional authority under the Constitution. All of the environmental and economic benefits that these aquatic ecosystems provide are at risk if some elements are protected and others are not. 31

32 Current Agency Actions on Jurisdiction Purpose to clarify the scope of waters of the U.S. in light of Supreme Court decisions and current science. Need concerns about inconsistency of interpretation and confusion in the regulated community regarding WUS scope. Improve predictability, efficiency, and consistency. 32

33 Data Review Data from FY09 and FY10 were used to determine distribution and number of the different types of waters (e.g., TNW, tributary, wetland, isolated water). Of approximately 184,000 waters in our database, 8.2% were determined to be non-jurisdictional under the 2008 Rapanos or 2003 SWANCC guidance. Of the non-jurisdictional waters: 1,082 (0.6%) had no SN 8,339 (4.5%) were isolated 5,713 (3.1%) were undetermined/unknown 33

34 Current Agency Actions on Jurisdiction May 2011 proposed draft guidance to help clarify where the Clean Water Act applies. July 31, 2011 public comment period for guidance closed. Many comments asked for rulemaking > 230,000 comments received Final Draft Guidance sent to OMB for interagency review; currently still in Draft form. Therefore 34

35 Therefore The Clean Water Act 2008 Guidance is still the current method for jurisdictional determinations. 35

36 Stacey M. Jensen HQUSACE Regulatory Program Manager (202) (Office) Donna M. Downing USEPA HQ Jurisdiction Team Leader (202)