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May 5, 2011

 

New Wetlands Guidance Means More Projects Will Require Permits

Property owners, developers and contractors are more likely to need a permit under the Clean Water Act (CWA) if they are going to conduct construction activity that disturbs or fills a waterway, waterbody or wetland, no matter how small, dry or remote it might be.

Under new draft guidance issued April 27, 2011 by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) field offices, any waterway, whether natural or manmade and whether flowing or dry, falls within federal jurisdiction. Accordingly, any discharge of any pollutant (including fill dirt) into these waterways requires federal permission.

Setting forth mandatory procedures for EPA and Corps field offices, the guidance is the federal government’s second attempt to expand the scope of its jurisdiction in light of a trio of Supreme Court decisions that have failed to settle conclusively the question of which waterbodies fall within the scope of the CWA.  (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Rapanos v. United States, 547 U.S. 715 (2006)). The draft guidance expands the agencies' jurisdictional reach over waters of the United States. The guidance states that based on science, field experience and the understandings expressed in the guidance, "the extent of waters over which the agencies assert jurisdiction under the CWA will increase." Corps districts are to use the guidance in administering the section 404 permit program governing filling of wetlands and other waterbodies.

Under the draft guidance, federal jurisdiction expands in two related ways compared to the previous policy. First, more wetlands will be subject to regulation because they are deemed “adjacent to” waters of the United States.  The guidance takes a very broad view of what constitutes a “relatively permanent waterway”—the Rapanos plurality’s touchstone for identifying waters that subject otherwise isolated patches to jurisdiction as adjacent wetlands. Under the new formulation, an isolated wetland near a wash that is dry for years at a time can be drawn into the Corps’ jurisdiction based on flow for only a brief period in one unusually wet season.

Second, the draft guidance revisits the concept of “significant nexus” used by concurring Justice Kennedy in Rapanos to identify an additional class of waters or wetlands that he would deem subject to jurisdiction based on their ecological significance. The draft guidance rejects Justice Kennedy’s case-by-base approach.  Instead, the guidance claims jurisdiction over entire watersheds based on the likelihood that addition of a pollutant into a tributary anywhere in the watershed might affect waters of the United States at a distant downstream location.  This approach will pull virtually all dry wash and arroyo drainage systems in the arid west within federal regulation. This result is foreshadowed by the Corps’ elimination of “swales or erosional features” including “gullies and small washes characterized by low volume, infrequent, or short duration flow” from its list of water bodies over which the Corps will generally not exercise jurisdiction.

The draft guidance identifies only a few narrow categories of waterbodies that may escape jurisdiction:  stock-watering ponds and similar small storage structures, if excavated entirely in uplands; reflecting pools, other landscaping features, and swimming pools; ornamental water features such as birdbaths; and puddles caused by construction activity. In the agencies' views, under the draft guidance, everything else is “fair game” for regulation and project proponents must seek a federal permit before proceeding.

The good news for project proponents is that the regulatory agencies intend to reauthorize nationwide permits set to expire next year for a variety of minor activities affecting water bodies.  In cases where a proposed activity falls within these nationwide permits, the work is essentially pre-approved, and the permit application and review process are replaced by a simple notice to the Army Corps that the work will occur. New to the Nationwide Permit list are pre-approvals for water-affecting construction activities incidental to renewable energy projects. While limited in scope, these pre-approved permits may be of significant value as renewable energy developers begin construction on lands in the desert Southwest.

The agencies assert that the guidance is not a rule, is not binding against the agencies and lacks the force of law. Unlike past guidance on this subject, the agencies warn that they may promulgate rules later. The EPA will accept public comments on the draft guidance until July 1, 2011.

 

 
 
 
 

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