Mar
26
New Policies on “Waters of the U.S.” Jurisdiction
March 26, 2008 | Posted by admin
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Jane Rowan – President, AWRA
Series: Water Resources in the Next Decade
New guidance to determine federal jurisdiction of some “waters of the United States” may lead to a more holistic view of the watershed and justify a National Water Policy.
On June 5, 2007, the Assistant Secretary of the Army and the Assistant Administrator for Water, U.S. Environmental Protection Agency (EPA), signed into effect a Memorandum for the Corps of Engineers Director of Civil Works (Corps) and EPA Regional Administrators to coordinate on Jurisdictional Determinations (JDs) under Clean Water Act (CWA) Section 404. This charge to collaboratively document JDs is a result of the Supreme Court decisions made under Solid Waste Agency of Northern Cook County vs. The US Army Corps of Engineers S 531 U.S. 159 (2001) (‘‘SWANCC’’) and the 2006 Supreme Court consolidated cases Rapanos v. U.S. and Carabell v. U.S. (known as the “Rapanos” decision).
In 2003 SWANCC challenged Corps’ findings of jurisdiction in intrastate, nonnavigable, isolated waters based on interstate commerce. The rationale for the claim was formalized in the Migratory Bird Rule (MBR) and connected isolated wetlands to interstate commerce through migratory waterfowl use. The Court ruled that the MBR was not legal. Millions of acres of isolated wetlands, including bogs, playa lakes, and prairie potholes, fell from Corps jurisdiction. This tragic decision left essential habitats for many species unregulated. New guidance addresses jurisdiction of isolated waters without the MBR.
The new procedures also implement Rapanos, apparently clarifying how much of the watershed Congress intended for Federal regulation. The new Corps/EPA procedures include determining a “significant nexus” with Traditional Navigable Waters (TNW) for seasonal, nonnavigable tributaries (Relatively Permanent Waters- RPW), RPW abutting wetlands and wetlands adjacent but not abutting RPWs. The defined cut-off for regulation of RPWs is 90 days. If flowing less than 90 days, the Corps and EPA must agree whether the tributaries, or wetlands abutting or adjacent to them have a significant nexus to TNWs.
Previously, Corps Districts determined jurisdiction based on “blue lines” on U.S. Geological Survey maps, scour, water-carried sediments/drift, and other less defensible methods. The new guidance potentially determines jurisdiction more consistently, although the process could be long and arduous when applied to large areas with multiple wetlands and streams. It is not clear whether the difficulty in applying the guidance will result in future Supreme Court litigation or tax already overburdened Corps District personnel with little payback in actual protection of the resource. Corps and EPA headquarters will soon assess application of the guidance by the 38 U.S. Corps Districts. Honest evaluation of District response is essential.
Although the new guidance is more definitive in the attributes of a connected “water,” the arbitrary 90-day flow duration used to define extent of the RPW may not adequately protect important systems. Hydrologic and ecologic considerations raise the question, should a channel with only 89-days of flow or less be excluded from jurisdiction. The February 2007 issue of the Journal of the American Water Resources Association contains a collection of papers documenting the significance of low flow, seasonal streams.
If challenges to the new guidance result in the reversion to original TNW limits, even more valuable waters, including millions of acres of wetlands, will be threatened. Alternatively, regulating sheet flow could send regulation of water resources into litigation limbo. Corps water policies must address the broad values of water resources, since they cascade to related federal and state water policies. If application of Corps’ jurisdiction limits the protection applied by associated programs, farreaching effects will result.
Our nation must think creatively about implementing a water policy where all governmental agencies – federal, state, and local – apply similar methods to adequately value water resources to wisely manage their use.
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