By Linda Roeder - BNA Daily Environment Report - September 9, 2011

Report Says Proposed Guidance Could Spur Improved Identification of Vulnerable Wetlands

Guidance proposed in May by the U.S. Army Corps of Engineers and the Environmental Protection Agency for determining Clean Water Act jurisdiction presents an opportunity for the agencies to more accurately account for losses of U.S. waters and wetlands that could benefit from additional protection, the Environmental Law Institute said in a Sept. 8, 2011 report. The report, America's Vulnerable Waters: Assessing the Nation's Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States, was prepared by ELI with the support of EPA's Office of Wetlands, Oceans, and Watersheds.

“Implementation of a standardized system for federal and state regulators to classify and record aquatic resources that do not fall under jurisdiction … could promote quantification of resource losses at local, watershed, or statewide scales,” the report said. “Detailed accounting for losses of vulnerable aquatic resources can help to inform state and local governments of the quantity and types of waters that may merit additional regulatory and non-regulatory protection,” it continued. Guidance a Precursor to Rules
The joint guidance proposed May 2 is intended to precede agency regulations clarifying Clean Water Act jurisdiction. EPA and the corps are reviewing comments on the proposal to determine how they would identify waters under federal jurisdiction in light of U.S. Supreme Court decisions on the issue (85 DEN A-15, 5/3/11).

The Supreme Court issued divided opinions in 2006 on Clean Water Act protections for wetlands adjacent to nonnavigable tributaries in Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006) (123 DEN A-1, 6/27/06) Justice Anthony Kennedy, who wrote a concurring opinion, said there must merely be a “significant nexus” between the body of water at issue and traditional navigable waters “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters.” The EPA/Corps of Engineers guidance makes a number of references to Kennedy's “significant nexus” test, although it is not the sole basis for the guidance.
ELI described the report as the first to “holistically analyze federal regulatory practices to characterize the particular wetland, stream, and other aquatic resource types that, in certain circumstances,” Corps of Engineers officials have determined can no longer be regulated under the Clean Water Act following the Supreme Court decision in Rapanos.


Jurisdiction ‘Loopholes' Identified

“Our study identifies loopholes in our Clean Water Act jurisdiction. The report should help state, local, and tribal governments fill the gap and protect vulnerable aquatic resources,” said ELI President John Cruden in a statement. The report identified a number of vulnerable waters and wetlands not covered by Clean Water Act jurisdiction, including prairie potholes, bogs, Carolina bays, playas, vernal pools, and headwater ephemeral and intermittent streams. The ELI found the percentage of non-jurisdictional determinations from individual districts that documented the use of significant nexus tests varied greatly—ranging from zero in Albuquerque, N.M.; Fort Worth, Texas; Jacksonville, Fla.; Memphis, Tenn.; Seattle; and Walla Walla, Wash., to 89 percent in Pittsburgh. The proposed guidance would enable the agencies to standardize the criteria and detail used to evaluate and document the significant nexus test, the report said.

Problems With Data Tracking

ELI said poor data tracking at the federal and state levels makes it difficult to identify, track, and protect vulnerable aquatic resources. Information on those waters the corps determined were not subject to federal jurisdiction still is not consistently available across the country, it said. The institute obtained jurisdictional determination forms for 2008 and 2009 for 31 of 38 Corps of Engineers district websites. However, it said it was uncertain whether these 31 districts posted all non-jurisdictional determinations from these years; some districts provided as few as three determinations on their websites. In addition, the report said, many specific water and wetland types were not recorded, preventing a comprehensive analysis of vulnerable wetlands, streams, or other waters. The corps also did not use standardized methods for identifying non-jurisdictional water types. “Lack of data at the state level also made it difficult to track wetland type,” the report said, noting that while the majority of states maintain tracking databases for aquatic resource permitting, only five specifically reported maintaining databases that track the specific wetland or stream type associated with state permits. The Environmental Law Institute's report, America's Vulnerable Waters: Assessing the Nation's Portfolio of Vulnerable Aquatic Resources Since Rapanos v. United States, is available here.