Federal Wetland Jurisdiction

Transcription

1 Federal Wetland Jurisdictin Tri White Deputy Chief, Regulatry Divisin USACE, Jacksnville District July 24, 2014 US US Army Army Crps Crps f f Engineers Engineers BUILDING BUILDING STRONG STRONG

2 Bttm Line Up Frnt The Clean Water Act 2008 Guidance is still the current methd fr jurisdictinal determinatins.

3 Why Waters f the US Matter Navigable Waters: Waters f the U.S., including Territrial Seas 303 Water Quality Standard & TMDLs States Tribes EPA FWS 311 Oil Spill Prgrams EPA 401 State Certificatin States Tribes EPA 402 Pllutant Discharge Permits States EPA 404 Dredge and Fill Permits USACE States EPA 3

4 CWA Sectin 404: A Shrt Histry 1972: Enacted. 1975: NRDC vs. Callway. WOUS brader than navigable. 1977: Regulatin & Cngressinal Amendments. 1979: Civiletti decisin n CWA authrity. EPA lead. 1985: SCOTUS in Riverside Bayview Hmes. Adjacent wetlands. 1986: Migratry Bird Rule ; mst recent versin f cnslidated regulatins issued. 2001: SCOTUS in SWANCC v. USACE. Islated waters. 2003: Advance Ntice f Prpsed Rulemaking. 2006: SCOTUS in Rapans & Carabell. Adjacent wetlands and tributaries : Rapans guidance issued and revised. 2011: Draft Guidance released fr public cmment. 2014: Draft Rule released fr public cmment 4

5 Waters Subject t CWA Prgrams 33 CFR part 328.3(a) Current regulatins define waters f the U.S. (WOUS) as including waters that are: Traditinally navigable (TNWs) Interstate Culd affect interstate cmmerce if used, degraded, r destryed Impundments f jurisdictinal waters Tributaries f jurisdictinal waters Territrial seas Wetlands adjacent t jurisdictinal waters Excludes waste treatment systems and prir cnverted crpland 5

6 SWANCC Jurisdictinal Issues Hw Far Upstream Migratry Bird Rule Hydrlgy: Overflws during rain events? Perennial Intermittent Ephemeral Ersinal Features Sheet flw r snwmelt Adjacent Wetlands: Prximity r Hydrlgy Hydrlgy: Direct & immediate subsurface infiltratin (nt grundwater)? N cnnectin t Aquifer Ditches? Subsurface Flw (discrete)? Prximity: Hw far? Hw many berms? Grundwater (nn-discrete)? Pipes? Sheet flw ver upland? Pumps? Aquifer Strm Drain Systems? Included as Tributaries / Waters f U.S. 6

7 Rapans Guidance: Kennedy Test Significant nexus evaluatin: An assessment f the flw characteristics and functins f the tributary, itself, in cmbinatin with the functins perfrmed by any wetlands adjacent t the tributary. T determine if they have mre than an insubstantial r speculative effect n the chemical, physical r bilgical integrity f TNWs. 7

8 Difficulties with Current Regulatins Regulatin des nt include definitins fr many terms such as, tributary, significant nexus. Regulatins d nt reflect all features that histrically have been cnsidered nnjurisdictinal. 8

9 Previus Statements Made n Jurisdictin Discver Magazine September 2008 (Senatr Obama) I am trubled by recent curt rulings that have cnfused rather than clarified federal jurisdictin ver waters f the United States, including envirnmentally sensitive wetlands critical t maintaining supplies f clean freshwater. I will supprt effrts t ensure that federal prtectin f the natin s waters is strengthened, nt weakened. Administratin Views Letter May 2009 (Sutley, Jacksn, Salazar, Salt, Vilsack) It is essential that the Clean Water Act prvide brad prtectin f the Natin s waters, cnsistent with full Cngressinal authrity under the Cnstitutin. All f the envirnmental and ecnmic benefits that these aquatic ecsystems prvide are at risk if sme elements are prtected and thers are nt. 9

10 Data Review Data frm FY09 and FY10 were used t determine distributin and number f the different types f waters (e.g., TNW, tributary, wetland, islated water). Of apprximately 184,000 waters in ur database, 8.2% were determined t be nn-jurisdictinal under the 2008 Rapans r 2003 SWANCC guidance. Of the nn-jurisdictinal waters: 1,082 (0.6%) had n SN 8,339 (4.5%) were islated 5,713 (3.1%) were undetermined/unknwn 10

11 What Waters Are Invlved? adjacent wetlands nn-tnw tributaries Rapans traditinal navigable waters (TNWs) adjacent wetlands Riverside SWANCC ther ( islated ) waters 11

12 Prpsed CWA Rule Published in Federal Register April 21, 2014 Public cmment perid pen until Octber 20, 2014 U.S. Envirnmental Prtectin Agency (USEPA) and Department f the Army believe that the draft rule is cnsistent with the U.S. Supreme Curt's SWANCC and Rapans decisins USEPA, Army and Office f Management and Budget have met with varius agencies, grups and rganizatins t listen t their cncerns abut the prpsed rule

13 Prpsed CWA Rule (cnt d) Prvides additinal clarity regarding gegraphic scpe f Clean Water Act (CWA) jurisdictin Imprves natinal cnsistency and predictability f jurisdictinal decisins applicable t all CWA prgrams (Clean Water Act, Sectins 303, 311, 401, 402, and 404)

14 Prpsed CWA Rule (cnt d) Categries f waters addressed: Navigable waters Interstate waters/wetlands Territrial seas Impundments f waters Tributaries Adjacent waters/wetlands Other waters New definitins: Tributary Neighbring Riparian area Fldplain Significant nexus

15 Prpsed CWA Act Rule Implementatin Expect slight increase (3%) ver 2008 guidance in jurisdictinal tributaries, adjacent and ther waters New JD Frm and dcumentatin requirements New technical tls fr the field t supprt determinatins Plicy fr handling recent pending/near expiring JDs Public/stakehlder utreach

16 Interpretive Rule Exemptin* Issued April 3, 2014 Clarifies the permitting exemptin* t discharges f dredged r fill material Assciated with certain agricultural NRCS cnservatin practices designed and implemented t prtect and enhance water quality The interpretive rule will: Imprve the cnsistency and integratin f prgrams as is fully cnsistent with the law Prmte the mutual bjectives f regulatins and statutes Increase clarity and predictability fr the agriculture cmmunity, wh wants t prtect the resurces n their lands *Clean Water Act Sectin 404 (f)(1)(a)

17 Interpretive Rule Exemptin* (cnt d) Activities must be implemented in cnfrmance with NRCS technical cnservatin practice standard NRCS standards prvide technical requirements, which are tailred t state and lcal cnditins and prvide specificatins fr installatin f cnservatin measures Must be part f established (i.e., nging) farming, ranching, r silviculture peratin Any farmer can utilize; n need t be enrlled in NRCS prgram *Clean Water Act Sectin 404 (f)(1)(a)

18 Interpretive Rule Exemptin* (cnt d) Landwners d nt need t determine whether the activities are in waters f the U.S. nr btain site-specific pre-apprval frm either USACE r the USEPA befre implementatin f a practice standard CWA Sectin 404(f)(2) is nt affected by the interpretive rule and activities may still be recaptured if they meet the terms f 404(f)(2) The USEPA, USACE and the USDA have entered int a Memrandum f Understanding (MOU) t develp and implement a prcess fr identifying, reviewing and updating NRCS agricultural cnservatin practices *Clean Water Act Sectin 404 (f)(1)(a)

19 Questins?