Corps of Engineers website for Rapanos guidance, issued June 6, 2007:

http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm


EPA website for Rapanos guidance:

http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html

This message has been edited. Last edited by: Johnny Stevens,

Wow! There's a lot there. Does this require any formal rulemaking process?

Matt said:

"...Wow! There's a lot there. Does this require any formal rulemaking process?..."

Dear Matt,

This issue is addressed in Foot Note 16 of the new Rapanos guidance on CWA Jurisdiction. It says:

"16 ......This guidance does not substitute for those provisions or regulations, nor is it a regulation itself. It does not impose legally binding requirements on the EPA, the Corps, or the regulated community, and may not apply to a particular situation depending on the circumstances. Any decisions regarding a particular water will be based on the applicable statutes, regulations, and case law. Therefore, interested persons are free to raise
questions about the appropriateness of the application of this guidance to a particular situation, and EPA and/or the Corps will consider whether or not the recommendations or interpretations of this guidance are appropriate in that situation based on the statutes, regulations, and case law...."


Since the guidance is not a regulation and does not impose legally binding requirements, apparently it does not have to go through the formal rule making process.

There is a lot of new paper work here, and in some cases it may be difficult to discern the boundary between guidance and rule making.

Since its just guidance and not a rule then it may be useful but not required.

This guidance is out for public comment, so someday it may become a rule.

This message has been edited. Last edited by: Johnny Stevens,

Johnny,

Thanks. Interesting.

I am glad to finally have some definition at to what makes a nexus.
Johnny is right about the big increase in paperwork. Of course, the Corps is going to shift this paperwork onto the consultants. It will be interesting to see how this all works out.

Did anyone see a clear, useable definition on what would make a wetland NOT adjacent to a water (presumably a stream)?

I am glad to see that ditches and gullies are no longer regulated, but suprised to read that they constitute a "surface connection." Any ideas how that is going to work when someone just fills in the ditch (not regulated) that connects the wetland to the water? Is the wetland then no longer regulated since there is no longer a surface connection?

Even prior to this "guidance", it has been an unfortunate but all too common practice in our district that servering jurisdiction = impact, which then requires mitigation.

De-watering a wetland is a significant impact, or did I miss something in the ecology of wetlands?

I agree that dewatering generally has an adverse affect on wetland ecology; however, I do not believe that dewatering a wetland is a CWA-regulated impact. Here, it is mearly the "severance of jurisdiction" that represents an "impact". As if to say that filling the ditch in the above scenario would constitute a "fill" of the up-stream system, since it is no longer COE jurisdictional.

Mr. Thomson,

We meet again.

No, I don't believe you missed anything in the ecology of wetlands. De-watering a wetland is, indeed, a significant impact....on that wetland. Cutting down a single tree is a significant impact....on that tree. But I believe the relevant 404 questions are: Is there a regulated discharge of dredged or fill material? And if so, does it result in a significant impact on the human environment?

This message has been edited. Last edited by: Matt Reed,

Matt said:

"...I believe the relevant 404 questions are: Is there a regulated discharge of dredged or fill material? And if so, does it result in a significant impact on the human environment?..."

Dear Matt,

I have been reading the new Rapanos Guidance, and it seems to say that the relevant Section 404 question is: "does it (a discharge) have a significant nexus to traditional navigable waters?"

If there is no significant nexus, then there may not be a significant impact.

Johnny,

Ask not: Does the DISCHARGE have a significant nexus? Ask: Does the geographic feature which the Corps/EPA wants to call "waters" have a significant nexus to navigable waters?

Unfortunately, it would appear that the Corps/EPA axis has fallen right into the trap that Justice Scalia warned of in his Rapanos opinion. That is: It is "waters" if it affects waters. Which, of course, flys in the face of sound legal reasoning, not to mention the bounds of simple logic. Granted, some boundary related to the so-called "aquatic environment" is recognized in evaluating "effect". But, let's face it, water is everywhere. So theoretically, everything can affect water.

This message has been edited. Last edited by: Matt Reed,

quote:

Originally posted by Matt Reed: ... But, let's face it, water is everywhere. So theoretically, everything can affect water.

I see my efforts have not been in vain; truly heartwarming.

quote:

Originally posted by Matt Reed:
Mr. Thomson,

We meet again.

No, I don't believe you missed anything in the ecology of wetlands. De-watering a wetland is, indeed, a significant impact....on that wetland. Cutting down a single tree is a significant impact....on that tree. But I believe the relevant 404 questions are: Is there a regulated discharge of dredged or fill material? And if so, does it result in a significant impact on the human environment?

I won't venture into the Federal Nexus issue since you and I have an agreement on that, eh? But I can address your second question:

One vernal pool is not significant in and of itself, in the scope of the Nation's Waters anyways, but as one part of a complex of vernal pools that now contains only 10% of it's former acreage - yes, since we are in the hole already. Digging it deeper only makes it harder (if not impossible) to get out of the hole.

Sins of the father I am afraid.

Hola Mateo!

PS - my new favorite quote:

quote:

Originally posted by Jason Milton:
I agree that dewatering generally has an adverse affect on wetland ecology...

generally... :P

Impacts to any portion of the Integrity Trinity should be considered significant according to the CWA.

Integrity Trinity?? Are we talking religion or wetlands here?

I am glad that we have guidance to use now; however fraught with difficulty it may be. At least I have guidance to point to now when the client asks questions that I had nothing in print prior to this release. My district seems to have followed most of these guidelines for years now, we just used different terms. When you have a fire plow line on a property line taken as Waters of the US, I just don't know how we could take anything else ...

As it may only be out for public comment, in my area it might as well be law at this point and we are being regulated by it for the next 6 months at a minimum!

Ah, David. We meet again. And once again you test my fortitude.

Obviously, my assertion that everything affects water and the implication that therefore everything IS waters is laced with sarcasm. And, predictably, you have seen my disingenuousness and raised the stakes with clever genuineness.

So I return to the basic question: If everything affects water and the limit of "waters" is to be defined by that which affects waters, where do we place the legal limit on regulated waters?

Oi Matt,

All in good fun. I heard Associate Justice Bryer on "Wait, Wait, Don't Tell Me" (a NPR show) today, and besides being very funny he said something very surprising. Although there are some vastly different views held by members of the Supreme Court in all his years there he has never heard a word of anger out of any of the justices, even during the heat of very serious debate. I think we here can at least strive to that level of character.

Yes, that is the basic question of all regulatory matters, particularly for the Fed whose jurisdiction is limited by the Commerce Clause. Luckily for you and I we reached consensus on that and agreed:

http://forum.sws.org/eve/forums/a/tpc/f/2756008642/m/6811051072/p/8

To sum up our previous agreement here I would say the best place for a legal limit on regulated waters is in State Law, but if the State's fail to act the Fed should update its own into plain, modern English.

In the spirit of debate, and in case I was not clear previously, I believe the Fed does indeed have the reach that every nearsighted developer fears. The hydrologic cycle is interconnected and inter-dependant, and still does not meet the plain English goals stated in the CWA for any portion of the triumvirate. So I must restate that we are still "in the hole", which can make seemingly insignificant impacts cumulatively significant (note: cumulative not used in the regulatory sense here). Our Nation's waters are better but we still have progress to make, particularly on the goal of biological integrity.

quote:

Originally posted by Matt Reed:
Ah, David. We meet again. And once again you test my fortitude.

Obviously, my assertion that everything affects water and the implication that therefore everything IS waters is laced with sarcasm. And, predictably, you have seen my disingenuousness and raised the stakes with clever genuineness.

So I return to the basic question: If everything affects water and the limit of "waters" is to be defined by that which affects waters, where do we place the legal limit on regulated waters?

quote:

Originally posted by Chip Jackson:
Integrity Trinity?? Are we talking religion or wetlands here?

...

Somewhere in between: Federal Law.

Physical, Chemical, and Biological Integrity
- all past due according to the CWA.

David,

Your implication that my message conveyed some anger has made me very angry! Hah! Justice Breyer's not the only comedian! I'm familiar with "Wait, Wait, Don't Tell Me" and I'm shocked, shocked, I tell you to hear that Justice Breyer was on NPR!

Your concerns regarding CWA goals and hydrologic inter-connectedness are all matters of permitting, not jurisdiction. Jurisdictional reach is strictly a legal and philosophical matter. We(Nino and me) can't be any clearer.

This message has been edited. Last edited by: Matt Reed,

Regarding the new Rapanos Guidance documents, Chip said:

"...As it may only be out for public comment, in my area it might as well be law at this point and we are being regulated by it for the next 6 months at a minimum!..."

One of the things that I find refreshing about the Guidance is its clear and unequivocal language regarding its purpose and the limitations on its legal authority.

The Guidance introduces new procedures and goals for developing a methdology to determine CWA jurisdiction. It is comprehensive, detailed, and a good first step in the long process of defining, testing, and eventually codifying new jurisdictional determination procedures. The goal of this Guidance is to test and develop these procedures and study case histories over the next six months.

Footnote 16 of the Guidance memorandum clearly states that is is not a new rule or regulation and imposes no binding legal requirements on anyone. It would be inappropriate for the Guidance to be applied as if were law.

This message has been edited. Last edited by: Johnny Stevens,

(My clarification was for the other kids in the room - I know you are not so easily roused.)

Anything that has a significant impact on interstate commerce constitutes a significant federal nexus eh?

Now don't go crawfishin' on me...

quote:

Originally posted by Matt Reed:
David,

Your implication that my message conveyed some anger has made me very angry! Hah! Justice Breyer's not the only comedian! I'm familiar with "Wait, Wait, Don't Tell Me" and I'm shocked, shocked, I tell you to hear that Justice Breyer was on NPR!

Your concerns regarding CWA goals and hydrologic inter-connectedness are all matters of permitting, not jurisdiction. Jurisdictional reach is strictly a legal and philosophical matter. We(Nino and me) can't be any clearer.

Little help, please?