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

The Compleat Wetlander: Clean Water Act Jurisdiction: Ideas for New Guidance and Rulemaking (Part II or 2)

Currently the Administration is reviewing “Clean Water Protection Guidance” (See last week’s Compleat Wetlander at: http://aswm.org/wordpress/the-compleat-wetlander-new-guidance-on-cwa-jurisdiction-will-be-out-for-public-review/) But guidance can only refine existing regulations. This means that new regulations defining “Waters of the U.S.” would be required to fully integrate and clarify the Carabell/Rapanos and SWANCC Supreme court decisions. Otherwise the Corps will be required to continue to apply a laborious two-part process to determining whether waters that do not meet the plurality test do meet the Kennedy “significant nexus test” and are subject to Clean Water Act jurisdiction. Currently when a permit applicant requests a decision from the Corps about whether water is regulated under the Clean Water Act, the Corps must identify the closest navigable water. To be a “navigable” water, a water body must meet two tests. It must be navigable-in-fact and it must currently or historically have been used for commercial navigation. Then the Corps must determine whether there is a “significant nexus” to that navigable water. This can be an extremely time consuming process. Rulemaking provides an opportunity to simplify this. There are a number of ways this could be accomplished. In 2007 the Association of State Wetland Managers published an issue paper that made a series of recommendations on how to develop guidance and rules that would revise and clarify jurisdictional determinations following the Carabell/Rapanos decision.

  1. Formally recognize that waters are jurisdictional if they meet either Justice
    Kennedy’s significant nexus test or the plurality’s (Scalia’s) categorical rule
    that waters are jurisdictional if there is a surface hydrological connection to
    either a navigable water or its seasonal tributary. (Included in current
    guidance)
  2. Build on existing regulations and guidance rather than engaging in a substantial
    rewrite. Rapanos did not invalidate any regulations.
  3. Sound science and careful documentation should be required for both
    jurisdictional and nonjurisdictional determinations.
  4. It should be clear wetlands “adjacent to” navigable-in-fact waters are
    jurisdictional whether there is a “continuous surface hydrological connection.”
  5. Designate classes of major tributaries and wetlands that in combination with
    other wetlands/waters within the watershed are presumed to have a significant
    nexus with downstream navigable waters.
  6. Shift at least a portion of the information gathering burden with regard to
    determination of significant nexus to permit applicants while requiring
    independent review and verification by field offices.
  7. Keep the “significant nexus” tests separate from the determination of what is a
    jurisdictional water consistent with current policy.
  8. Apply a “notice” procedure for activities in headwater areas not included in
    any overall class of wetlands or other waters determined to have a significant
    nexus to navigable waters—to allow Corps opportunity to check for a
    significant nexus.
  9. Define and provide guidance on the application of the terms
    “nexus” (hydrological or ecological connections) and “significant” (cumulative
    effect).
  10. In determining “nexus,” regulations should accept a broad range of valid
    connections, use both quantitative data and qualitative judgment, and
    recognize watershed and landscape context.
  11. In determining “significance” the agencies should consider any “threat” to
    navigable waters significant, evaluate both the current and future cumulative
    potential for threats, and consider geographical context.

These are some ideas that may or may not be adopted by the Administration.Guidance and rulemaking require the opportunity for public comment. If the Administration moves ahead with formally proposing guidance or rulemaking in the future many groups, individuals and organizations will have the opportunity to provide ideas and recommendations. The links below provide additional information.

A slightly more detailed list of these actions can be found at “Recommended Actions to Clarify Clean Water Act Jurisdiction: http://aswm.org/pdf_lib/
recommended_actions_clarify_cwa_030507.pdf
A full discussion paper that includes “recommended actions” http://aswm.org/pdf_lib/significant_nexus_
paper_030507.pdf

CWA regulations defining waters of the U.S. and other information on the Clean Water Act is available at: http://www.epa.gov/owow_keep/wetlands/guidance/CWAwaters.html
For more information about Clean Water Act jurisdiction and the Carabell/Rapanos and SWANCC Supreme Court cases visit ASWM’s Clean Water Act webpage: http://aswm.org/wetlands-law/cwa and ASWM’s Carabell/Rapanos webpage: http://aswm.org/wetlands-law/rapanos-carabell

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