Association of State Wetland Managers - Protecting the Nation's Wetlands.

Salameander: The Nexus

Salameander“In determining the limits of its power to regulate discharges under the [Clean Water] Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious.”

-United States v. Riverside Bayview, 474 U.S. 121 (1985)

Over a quarter century ago, the U.S. Supreme Court issued a ruling to clarify the scope of federal jurisdiction over wetlands and other waters in the Riverside Bayview case.  As the court noted in 1985, “this is no easy task.”  We’re still at it.

The current episode of this saga consists of a draft report by the U.S. Environmental Protection Agency (EPA) – “The Connectivity of Streams and Wetlands to Downstream Waters:  A Review and Synthesis of the Scientific Evidence.”  As discussed by Jeanne Christie in her recent blog post at the Compleat Wetlander, this report is currently under review by an independent Science Advisory Board (SAB) panel, which is also accepting public comment.  It is expected that the final report will support rulemaking by EPA and the Corps of Engineers on the scope of jurisdiction under the Clean Water Act.

While wetland scientists have acknowledged the difficulty of drawing unnaturally bright lines within natural systems, we have managed over the years to sort out most wetland delineation issues.  The current discussion is much more about what the nation is willing to regulate under federal law.  That is, what wetlands and headwater streams have national significance, or are of interstate or intrastate concern where proposed actions may impact public water resources and aquatic species.  And this is still no easy task.  We need to take into account what the Courts have said, what science tells us, and what policy makers can synthesize of both.

A good many of the questions about what the Supreme Court said revolve around the opinion of Justice Kennedy in the 2006 decision on the Rapanos case.

“…The implication, of course, was that wetlands’ status as “integral parts of the aquatic environment”—that is, their significant nexus with navigable waters—was what established the Corps’ jurisdiction over them as waters of the United States.

…Consistent with SWANCC and Riverside Bayview and with the need to give the term “navigable” some meaning, the Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.

…, wetlands possess the requisite nexus, and thus come within the statutory phrase “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 more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

KENNEDY, J., CONCURRING IN JUDGMENT

RAPANOS V. UNITED STATES,  547 U. S. ____ (2006)

There is much more, but this provides a good sample of what Justice Kennedy had to say regarding definition of federal jurisdiction.  Through this opinion, the “significant nexus” between wetlands, headwaters, and traditionally navigable waters has been established as a regulatory holy grail.  How has science responded?

“Connectivity is a foundational concept in hydrology and freshwater ecology. The structure and function of downstream waters are highly dependent on the constituent materials contributed by and transported through water bodies located elsewhere in the watershed.

Numerous factors affect physical, chemical, and biological connectivity within river systems. These factors operate at multiple spatial and temporal scales, and interact with each other in complex ways to determine where components of a system fall on the connectivity-isolation gradient at a given time. In this section, we focus on five key factors: climate, watershed characteristics, spatial distribution patterns, biota, and human activities and alterations. These are by no means the only factors influencing connectivity, but they illustrate how physical, chemical, and biological connectivity are shaped by many different variables.”

From The Connectivity of Streams and Wetlands to Downstream Waters:
A Review and Synthesis of the Scientific Evidence
– Draft Report

The report currently under review by the SAB is based on an ambitious literature review and synthesis of over 1000 peer-reviewed papers.  In spite of its scope, more remains to be added from the “gray literature” including sound and thoroughly vetted but potentially unpublished scientific work by states, tribes, federal agencies, and academic institutions that have sought to define the significant chemical, physical and biological connections among waters.  We hope that many agencies will contribute to this review – especially with examples of practical procedures that are being used to apply science to real world decisions.

We also hope that the clarity of the final report, and even more importantly the anticipated rulemaking, can be enhanced.  Science is complex, and admittedly is not typically well-served by over-simplification.  Yet, we need to lay a clear foundation for wetland protection that can readily be understood by the public and the makers of public policy.  Moreover, we need principles that can be readily applied by state, tribal, and federal permit staff in the field, on a case-by-case basis.

If we aren’t concerned so much with clarity, we could look to poetry for an explanation of the nexus…

Outside the pull of gravity
Beyond the spectral veil
Within our careful reasoning
We search to no avail
For the constant in the chaos
For the fulcrum in the void
Following a destiny
Our steps cannot avoid.

“The Nexus” by Dan Fogelberg

Or perhaps – given the world’s growing understanding of the importance of protecting water to the future of our planet – the final answer may be biblical in its vision.

All the rivers run into the sea; yet the sea is not full; unto the place from whence the rivers come, thither they return again.

Ecclesiastes 1:7

More information

To read the U.S. Supreme Court decision in Riverside Bayview, click here.

To read the Supreme Court decision in Rapanos v United States and related information, click here.

To review & comment on SAB Report – “The Connectivity of Streams and Wetlands to Downstream Waters:  A Review and Synthesis of the Scientific Evidence”:

The report is posted here.  For a short summary of what is in the report and more information about the review process, click here. Comments on the report may be submitted using the e-Government Regulations.gov website. From the site, select “Environmental Protection Agency” and the keyword “EPA-HQ-ORD-2011-0806″ (for the docket ID) to comment on this report.  Comments will be accepted until the review is completed, probably sometime in late winter or early spring.  However, in order to impact the deliberations of the panel selected by the Science Advisory Board to review the report, comments should be submitted by October 31.

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