Regulation of Wetlands Under the Clean Water Act

1
Regulation of Wetlands Under the Clean Water Act

• Where weve 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
• [phone]

2
Governing Laws and Regulations

• Clean Water Act
• Section 402 (NPDES)
• Section 404 (Permits for dredged or fill
  material)
• Section 401 (Certification)

3
Governing Laws and Regulations

• EPA Regulation
• Army Corps of Engineers Regulations
• State Regulations

4
CWA, Section 402

• The discharge of a pollutant is illegal without
  a permit.

5
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.

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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.

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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.

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Navigable Waters

• Waters of the United States, including the
  territorial seas

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Navigable Waters

• More than navigable in fact waters because of
  the Commerce Clause
• Does not extend to all waters

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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

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

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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)

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Riverside Bayview Homes

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

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Riverside Bayview Homes

• Corps asserted the CWA covered all freshwater
  wetlands that are adjacent to covered waters

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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

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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

17
SWANCC

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

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SWANCC The Supremes Do Not Agree

• In a majority opinion (Rehnquist, OConnor,
  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

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So how far up the river does CWA jurisdiction
extend?

• Until 2006, a long way up . . .

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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

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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)

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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

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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

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Raponos v. United StatesThe 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)

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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.

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Strict Rule

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

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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.

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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.

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The Swing Vote

• Must be assessed in terms of the CWAs goals
  restore and maintain the physical, and
  biological integrity of the Nations 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.

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The Dissenting Opinion

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

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So what does the Corps do with the Rapanos
Opinion?

• - After a year, issue joint guidance with EPA

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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

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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

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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

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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

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Conclusion

• If possible,
• Avoid case-by-case wetlands
• Start early
• More to come