2007 buss meeting wetlands presentation

Regulation of Wetlands Under the Clean Water Act: 

Regulation of Wetlands Under the Clean Water Act Where we’ve been, Where we are, Where are we going? W. Marshall Taylor, Jr. McNair Law Firm, P.A. Post Office Box 11390 Columbia, South Carolina 29211 (803) 799-9800

Governing Laws and Regulations: 

Governing Laws and Regulations Clean Water Act Section 402 (NPDES) Section 404 (Permits for dredged or fill material) Section 401 (Certification)

Governing Laws and Regulations: 

Governing Laws and Regulations EPA Regulation Army Corps of Engineers Regulations State Regulations

CWA, Section 402: 

CWA, Section 402 The “discharge of a pollutant” is illegal without a permit.

Section 404 Permit Requirement: 

Section 404 Permit Requirement Section 404 of CWA – Requires landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries.

“Discharge of a pollutant” means: 

“Discharge of a pollutant” means any addition of any pollutant to navigable waters from any point source, any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.

“Pollutant” means: 

“Pollutant” means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.

“Navigable Waters”: 

“Navigable Waters” “Waters of the United States, including the territorial seas”

“Navigable Waters”: 

“Navigable Waters” More than “navigable in fact waters” – because of the Commerce Clause Does not extend to all waters

What Constitutes a “Navigable Water”?: 

The cost of permitting is big – so the definition is really important. $1.7B spent each year by private and public sectors obtaining wetlands permits What Constitutes a “Navigable Water”?

Slide11: 

Average Applicant for an individual permit 788 days $271,596 Average Applicant for a nationwide permit 313 days $28,915

The United States Supreme Court Decisions Span Over Two Decades: 

The United States Supreme Court Decisions Span Over Two Decades United States v. Riverside Bayview Homes, Inc. 474 U.S. 121 (1985) Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, 531 U.S. 159 (2001) Raponos v. United States, 547 U.S. _____ (2006)

Riverside Bayview Homes: 

Riverside Bayview Homes Corps sought to enjoin property owner of land near the shores of Lake St. Clair (MI) from filling without a permit

Riverside Bayview Homes: 

Riverside Bayview Homes Corps asserted the CWA covered “all freshwater wetlands” that are adjacent to covered waters

Riverside Bayview Homes: 

Riverside Bayview Homes Wetlands – “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adopted for life in saturated soil conditions”

Riverside Bayview Homes: 

Riverside Bayview Homes District Court held the property was wetland subject to the Corps permit authority Sixth Circuit reversed – adjacent wetlands that are not subject to flooding by the adjacent navigable waters not covered by the CWA Supreme Court reversed unanimously – adjacent wetlands are covered

SWANCC: 

SWANCC Migrating Bird Rule Section 404 extends to intrastate waters that provide habitat for migrating birds

SWANCC The Supremes Do Not Agree: 

SWANCC The Supremes Do Not Agree In a majority opinion (Rehnquist, O’Connor, Scalia, Kennedy, Thomas) – CWA does not reach an abandoned sand and gravel pit such as the one at issue Dissent (Stevens, Souter, Ginsburg, Breyer) CWA includes isolated wetland coverage Commerce clause included the power to preserve the natural resources which generate commerce

So how far up the “river” does CWA jurisdiction extend?: 

So how far up the “river” does CWA jurisdiction extend? Until 2006, a long way up . . .

A long, long, long way up . . . : 

Storm drains Roadside ditches Ripples of sand in the desert that may contain water once a year Lands covered by floodwaters once every 100 years Any parcel of land containing a channel or conduit – whether man-made or natural, broad or narrow, permanent or ephemeral A long, long, long way up . . .

Raponos v. United States: 

Raponos v. United States Consolidated two Sixth Circuit Cases Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004) United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004)

Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004): 

Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004) Also considered Riverside Bayview and SWANCC Found wetlands were adjacent even though separated from tributaries by a manmade berm and a ditch

United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004): 

United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004) Considered Riverside Bayview, 474 U.S. 121 (1985) – CWA covers “adjacent” wetlands Considered Solid Waste Agency of Northern Cook County (“SWANCC”), 531 U.S. 159 (2001) (Migratory Bird Rule not supported by CWA) No direct abutment requirement to invoke CWA jurisdiction Non-navigable waters must have a hydrological connection or some other significant nexus to traditional navigable waters to invoke CWA jurisdiction

Raponos v. United StatesThe Supremes divide further: 

Raponos v. United States The Supremes divide further Plurality – 4 - 4 split with Kennedy breaking the tie (i.e., no clear answer) Scalia, Roberts, Thomas, Alito – strict rule (39 pages) Kennedy – nexus test (30 pages) Stevens, Souter, Ginsburg, Breyer – dissented – the Corps regulations are tried and true (26 pages)

Strict Rule: 

Strict Rule The waters of the United States include only those relatively permanent, standing or continuously flowing bodies of water “forming geological features” that are described in ordinary parlance as “streams, oceans, rivers, [and] lakes.”

Strict Rule: 

Strict Rule Does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

Strict Rule: 

Strict Rule A wetland may not be considered “adjacent to” remote “waters of the United States based on mere hydrologic connection.” Only those wetlands with a continuous surface connection to bodies that are “waters of the US” in their own right, so that there is no clear demarcation between the two are “adjacent” to such waters and covered by the Act.

The Swing Vote: 

The Swing Vote A wetland constitutes “navigable waters” under the Act if it poses a “significant nexus” to waters that are navigable in fact or that could reasonably be so made. Justice Kennedy does not, however, consider all the factors necessary to determine that the lands in question had, or did not have, the requisite nexus.

The Swing Vote: 

The Swing Vote Must be assessed in terms of the CWA’s goals – “restore and maintain the physical, and biological integrity of the Nation’s waters.” Wetlands possess the requisite nexus if they significantly affect the chemical, physical, biological integrity of other covered waters understood as navigable in the traditional sense.

The Dissenting Opinion: 

The Dissenting Opinion In 1977, Congress approved the Corps regulations Plurality opinion not in accordance with precedent Wetlands adjacent to tributaries should be covered

 So what does the Corps do with the Rapanos Opinion? : 

So what does the Corps do with the Rapanos Opinion? - After a year, issue joint guidance with EPA

Summary of Key Points: 

Summary of Key Points The agencies will assert jurisdiction over the following waters: Traditional navigable waters Wetlands adjacent to traditional navigable waters Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g., typically three months) Wetlands that directly abut such tributaries

Summary of Key Points: 

Summary of Key Points The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water: Non-navigable tributaries that are not relatively permanent Wetlands adjacent to non-navigable tributaries that are not relatively permanent Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary

Summary of Key Points: 

Summary of Key Points The agencies generally will not assert jurisdiction over the following features: Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow) Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water

Summary of Key Points: 

Summary of Key Points The agencies will apply the significant nexus standard as follows: A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters Significant nexus includes consideration of hydrologic and ecologic factors

Conclusion: 

Conclusion If possible, Avoid “case-by-case” wetlands Start early More to come