Sustainable Land Development Today - October 2007 - (Page 29)

REGULATIONS Reactions Mixed to USEPA and USACE Document Agencies’ guidance statement to clarify jurisdiction issues following 2006 Supreme Court wetlands ruling raises additional concerns. By Benjamin C. Grawe and Edward B. Witte As those who follow wetlands regulation know, on June 5, 2007, the U.S. Environmental Protection Agency (USEPA) and the U.S. Army Corps of Engineers (USACE or the Corps) issued joint regulatory guidance (“Guidance”)i on the scope of federal wetland jurisdiction under the Clean Water Act.ii The new Guidance has implications on a national scale. In one project in Utah, an approval which, just before the issuance of the Guidance, was all but finalized and signed was held up pending a potential consideration of the consistency of the approval with the newly issued Guidance. The authors were able to persuade the federal authorities who oversee wetlands projects in Utah and Nevada to allow the project to proceed. However, the experience demonstrates how the Guidance has rattled the permitting procedures. The much anticipated Guidance seeks to clarify the circumstances where the federal agencies have permitting and enforcement authority over “isolated wetlands” and “adjacent wetlands,” and comes in response to last year’s U.S. Supreme Court decision in the consolidated cases of Rapanos v. United States and Carabell v. United States Army Corps of Engineers.iii These Rapanos cases divided the court and produced five separate opinions – none of which amounted to a controlling majority. The resulting confusion over how certain wetlands are regulated led agency field offices to postpone many jurisdictional determinations and permitting actions, even though the Corps had directed its district offices in a July 2006 interim Guidance memorandum to essentially conduct business as usual until the joint Guidance was released.iv The new Guidance is designed to enable the agencies to make clear, consistent and predictable jurisdictional determinations.v This is done primarily through the creation of updated analytical standards based on Justice Kennedy’s plurality opinion in Rapanos, and by delineating under what circumstances federal jurisdiction will be automatically asserted and when the jurisdictional determination will be made on a case-by-case basis.vi The Guidance directs EPA and the Corps to continue to assert jurisdiction over the following waters without making a determination as to whether there exists a “significant nexus” (the critical component of the Rapanos plurality opinion) between the wetland and the traditional navigable water: • Traditional navigable waters (as described in 33 C.F.R. § 328.3(a)(1) and 40 C.F.R. § 230.3(s)(1)). • Wetlands adjacent to (“bordering, contiguous or neighboring”) 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 for three months).vii • Wetlands that directly abut these tributaries (e.g., that are not separated by uplands, a berm, dike, or similar feature).viii Pursuant to the Guidance, EPA and the Corps will determine jurisdiction over the following waters by undertaking a caseby-case, fact-specific analysis to determine whether they have a “significant nexus” with 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.ix The Guidance reconfirms that the EPA and the Corps generally will not assert jurisdiction over the following: • 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.x Finally, the Guidance indicates that the EPA and the Corps 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.xi Initial reactions to the Guidance are mixed. Developers have expressed concern that it will invariably result in more, not less, red tape. The Guidance suggests a three step process to evaluwww.SLDTonline.com 29 http://www.SLDTonline.com

Table of Contents Feed for the Digital Edition of Sustainable Land Development Today - October 2007

Sustainable Land Development Today - October 2007 Contents Our Voice Your Voice Editorial Board Mapping the Development Process Looking at a New Dimension The Environmental Liability Continuum GPS System Makes the Grade Regulations: Reactions Mixed Trends: Communications Easements Business Management: Recycling Sustainable Practices: LEED-ND Energy: Community Propane Systems Transportation: Mountain Solutions Recommended Reading Calendar Products/Services Showcase Classifieds Advertiser Index The Last Word

Sustainable Land Development Today - October 2007

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