Wetlands Law Update
 
November 3, 2006
 
Lawrence R. "Larry" Liebesman- Washington

Wetlands issues continue to be a major focus of environmental debate and discussion. The U.S. Army Corps of Engineers (the Corps), the Environmental Protection Agency (EPA) and the Department of Justice (DOJ) are working on guidance for interpreting the rather confusing decisions of the U.S. Supreme Court in the Rapanos and Carabell cases. The first few lower court decisions interpreting the Court’s decision are beginning to trickle in. In the meantime, the Corps has recently issued proposed revised nationwide permits that will significantly impact the regulated community.

 

Rapanos/Carabell Update

The Supreme Court’s June decision in Rapanos v. United States and Carabell v. Corps, 126 S.Ct. 2208 (2006), addressing whether the Clean Water Act (CWA) allows the Corps to regulate wetlands and waters that are not physically connected or abutting traditionally navigable waters, has generated considerable confusion. In a 5-4 plurality decision, the Court created two tests for determining wetlands jurisdiction:

1) the Scalia test which requires a permanent hydrologic connection thereby excluding channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall

2) the Kennedy test which requires a wetland to possess the requisite “significant nexus” necessary to restore and maintain the chemical, physical and biological integrity of “navigable” waters

The issue of which test represents the holding of the Court is emerging as a key issue in the wetlands debate.

To date, four courts have interpreted the Supreme Court’s decision. In United States v. Chevron Pipe Line Co., 2006 U.S. Dist. LEXIS 47210 (2006), decided less than two weeks after Rapanos, the court held that a discharge of oil to an unnamed tributary that traversed to an intermittent creek that flows only “during rainfall events” was not a discharge into a water of the United States under the Oil Pollution Act (OPA) which uses the same definition of “navigable waters” as the CWA. The court relied on the earlier Fifth Circuit decisions of In Re Needham, 354 F.3d 340, 346 (5th Cir. 2003), and Rice v. Harkin Oil Co., 250 F.3d 264, 270 (5th Cir. 2001), in finding that the government may not rely on merely speculative evidence regarding the “farthest traverse of the spill” that oil “might possibly be carried downgrade.” Applying Rapanos and the prior Fifth Circuit decisions the court held that as a matter of law, the connection of generally dry channels and creek beds will not suffice to create a “significant nexus” to a navigable water simply because one feeds into the next during the rare times of actual flow.

On August 2, 2006, a Florida district court held that for the purposes of issuing a search warrant, it was reasonable for a judge to conclude that there was probable cause to believe that CWA jurisdiction extends to a creek that runs behind and receives unpermitted human waste discharge from a farm labor camp. The creek at issue in the case is a relatively permanent, continuously flowing body of water with quantifiable geographic features and is a natural tributary of a river. Therefore, the creek met both the Scalia and Kennedy tests set forth in Rapanos.

On August 10, 2006, the Ninth Circuit decided Northern California River Watch v. City of Healdsburg, 2006 U.S. App. LEXIS 20531, in which the court found the Kennedy test to be the controlling rule of law. In Healdsburg, the city discharged sewage into a pond, which was a quarry pit that had filled with water from a surrounding aquifer, which was next to a river. The issue was whether the pond was subject to the CWA because it contained wetlands that were adjacent to a navigable river of the U.S. The court found a substantial ecological nexus connecting the ponds and its wetlands to the river because the pond waters seeped directly into the navigable river. The evidence indicated that there was an actual surface connection between the pond and the river where the river overflowed the levee between them. There were also ecological connections, and the pond significantly affected the chemical integrity of the river by increasing its chloride levels.

On September 22, 2006, the Seventh Circuit addressed the Supreme Court’s decision in responding to the Court’s remand of the decision of United States v. Gerke Excavating, Inc. ( No. 04- 3941). The Seventh Circuit concluded that the Kennedy test was controlling, finding that Kennedy’s test would “command the support of five Justices (himself plus the four dissenters)” in most cases where Kennedy would find federal authority over wetlands in a future case. The Seventh Circuit then remanded the case to the district court for further fact finding.

The Corps, EPA and DOJ are working on joint guidance on how to interpret and apply the Court’s ruling. That guidance is expected to be issued in the near future. As an interim step, the Corps headquarters sent an e-mail to district and division offices in July suggesting that the Corps delay making jurisdictional determinations for areas beyond the limits of traditionally navigable waters (i.e., outside Section 10 waters).

 

Proposed Changes to the Nationwide Permit Program

On September 26, 2006, the Corps issued proposed new Nationwide Permits (NWP) that will replace the permits due to expire on March 18, 2007. The NWP program is intended to cover activities that are similar in nature and that have no more than minimal impacts on the aquatic environment including wetlands. The Corps proposed to reissue 26 prior NWPs and six proposed new NWPs with some modifications. The proposed permits retained the one-tenth acre pre- construction notification and the one-half acre maximum impact limit in the prior NWP program while incorporating more flexible watershed-based mitigation provisions as well as eliminating restrictive floodplain restrictions in favor of deference to local floodplain approvals. The Corps will receive public comments through November 27, 2006.

These wetlands developments will impact many public and private activities and bear watching.

 

For more information, e-mail Lawrence R. Liebesman or Julia A. Jones at lawrence.liebesman@hklaw.com or julia.jones@hklaw.com , respectively, or call toll free, 1-888-688-8500.