Sustainable Land Development Today - October 2007 - (Page 30)

REGULATIONS ate jurisdiction over an isolated/adjacent wetland: (i) is it “traditionally navigable”? (ii) does it meet Justice Scalia’s test of a “continuous surface [water] connection”? or (iii) does it meet Justice Kennedy’s “significant nexus” test as outlined in the Rapanos case? This process could easily result in excess bureaucracy and continued backlogs. The trade-off, however, may be worth the extra steps. A developer in Idaho recently was convicted of knowingly discharging pollutants into a seasonal creek bed. United States v. Moses, No. 06-30389 (9th Cir. August 3, 2007). He had argued that the creek was not subject to federal regulation because of its intermittent flow and because the discharges took place during the creek’s “dry period.” Id. The United States Court of Appeals for the Ninth Circuit disagreed and upheld the developer’s four-year sentence and fine of $9,000. Id. In addition to practical delays, some believe the agencies have exceeded their rulemaking authority. The National Association of Home Builders has sued the Corps for “overreaching” in promulgating the Guidance, alleging that the Guidance is at odds with a rule published in March 2007 identifying the Corps’ authority over “ephemeral” streams. The Corps maintains that the Guidance does not affect such “nationwide permits,” but it would appear unusual for a direct contradiction to exist between the Guidance and the Corps’ previously promulgated regulations. Complicating matters further, there is pending legislation in Congress designed to more clearly define federal jurisdiction over “waters of the United States,” including wetlands.xii This legislation, if passed, will surely have an effect on the Guidance and how it is interpreted and implemented. In spite of these concerns, the jointly issued Guidance became effective immediately upon issuance. The agencies indicated that they would revisit jurisdictional determinations made after the Rapanos decision (June 19, 2006) only if requested to do so by the applicant, but would not revisit jurisdictional determinations made prior to the Rapanos decision. The Guidance appears not to affect decisions that were already in the pipeline. Recently, a significant wetland fill permit was issued by the Corps’ St. George Regulatory Field Office in connection with an application that had been pending in the Sacramento District (which includes parts of Nevada) well before release of the Guidance. Success stories like this have been rare. Yet despite significant backlogs and regulatory uncertainty, knowledgeable practitioners have been able to obtain discharge permits and wetland water quality certifications for both residential and industrial development projects in various parts of the country. Only time will tell if the new Guidance succeeds at clarifying the agency’s jurisdictional determination process and ultimately results in more predictable permitting. For now, most developers are simply looking for a break in the log jam. The Guidance may provide just that. EPA and the Corps will consider public comment during the first six months of agency implementation. Developers and practitioners are encouraged to communicate with the agencies regarding their experience with the Guidance. Comments and case studies may be submitted to docket EPA-HQ-OW-20070282 through www.regulations.gov. SLDT About the authors: Benjamin C. Grawe and Edward B. Witte are attorneys with Gonzalez Saggio & Harlan LLP. i The new Guidance can be found at http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf 33 U.S.C. § 1251, et seq. 126 S. Ct. 2208 (2006). Memorandum to Corps District Offices from Mark Sudol, Interim Guidance on the Rapanos and Carabell Supreme Court Decision (July 5, 2006). Press Release, EPA, Army Corps Issue Joint Guidance to Sustain Wetlands Protection Under Supreme Court Decision (June 5, 2007) (this release can be found on the EPA’s website at http://yosemite.epa.gov/opa/admpress.nsf/2007%20Press%20Release s!OpenView). Joint EPA and U.S. Army Corps of Engineers Guidance, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, pp. 4-11, June 5, 2007, (http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.p df). All of the Justices in Rapanos agreed that intermittent streams can be “waters of the United States” under the Clean Water Act. Id. at pp. 4-5. Id. at p. 7. Id. at pp. 7 and 11. Id. at pp. 8-11. The Clean Water Restoration Act, H.R. 2421, was introduced by Representative James Oberstar (D-MN) on May 22, 2007. ii iii iv v vi vii viii ix x xi xii Circle 194 • or www.SLDTonline.com/adinfo 30 October 2007 Sustainable Land Development Today http://www.regulations.gov http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf http://yosemite.epa.gov/opa/admpress.nsf/2007%20Press%20Releases!OpenView http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf http://aquashield.com http://aquashield.com http://www.SLDTonline.com/adinfo

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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