11th Circuit Court Decides a Perennial Stream is not subject to Clean Water Act

By Jon Kusler, Esq., Ph.D., Association of State Wetland Managers, Inc.

On October 24, 2007 the 11th Circuit Court of appeals (Alabama, Georgia, and Florida) overturned the lower, district court Clean Water Act convictions of several individuals for dumping waste water into a stream because the U.S. government had not sufficiently demonstrated that the stream had a "significant nexus" to navigable waters and was, therefore, a "navigable water" of the U.S. and subject to CWA jurisdiction. Rapanos had not been decided when the case was considered by the lower district court so there was no need to explicitly show "significant nexus" in the trial at this level. Just how much evidence government will need to introduce to establish a "significant nexus" in a retrial remains to be seen. It is possible that government will have little difficulty in establishing a "significant nexus" once the actual words "significant nexus" are used in the retrial jury instructions and jury deliberations. Nevertheless, the language of the court in rejecting EPA's expert testimony presented at the district court level as insufficient suggests that this court and perhaps other courts will demand more evidence of hydrologic, biological, or other sorts of connections than government agencies are ordinarily able to supply given limited budgets and staffing.

http://www.aswm.org/fwp/robinson_11th_circuit_court_case_1107.pdf

Thank god we have an election year approaching! I was begining to think this issue was getting a little bit confusing. I am sure the presidential candidates, on both sides of the aisle, will be able to make this issue crystal clear in the upcoming months.

Judge Propst was the judge who heard the Robison case (above) in the lower courts. After the case was returned to the lower court by the 11th Circuit Court of Appeals, Judge Propst wrote a memorandum explaining why he was directing the clerk to reassign the case.

His memorandum is an insightful and humorous analysis of the Rapanos decision and it explains the issues faced in future CWA cases.

link to memorandum:

http://www.aswm.org/fwp/judge_propst_post_appeal_110707.pdf

Let's see now!
Congress has chosen not to get involved to clarify what Congress wanted in 1972, so

You have an Apathetic legislative branch.

The bureaucrats believe that you can solve the problem by throwing words and paper at it, so

You have a Delusional executvie branch.

And now, you have Dissent within the judicial branch.

Our government has A.D.D. I think this is called a learning disability.

EPA, Army Corps Extend Public Comment Period for Joint Rapanos Guidance

Contact: Enesta Jones, (202) 564-4355; jones.enesta@epa.gov

EPA and the U.S. Army Corps of Engineers (Corps) are extending the public comment period for the interagency joint guidance on the scope of Clean Water Act geographic jurisdiction following the U.S. Supreme Court's decision in Rapanos v. United States. The public comment period has been extended 45 days and comments on the guidance and experiences with its implementation are now due by January 21, 2008. EPA and the Corps issued the guidance in June 2007, consistent with the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies' jurisdiction under the Clean Water Act. The guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush Administration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement and protection of 3 million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes. During the early implementation of the guidance, the agencies are inviting public comments on case studies and experiences in applying the guidance. Comments can be submitted to docket EPA-HQ-OW-2007-0282 through www.regulations.gov. The agencies, within nine months after the Rapanos guidance has been issued, intend to either re-issue, revise, or suspend the guidance after carefully considering the public comments received and field experience with implementing the guidance. For more information, see:

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

Clean Water Act Proposals Go Too Far, NAHB Tells Senate

December 13, 2007 - Proposed legislation that would broaden the authority of the Clean Water Act is a leap in the wrong direction, the National Association of Home Builders (NAHB) told the U.S. Senate Committee on Environment and Public Works today.

NAHB has long supported the goals of the Clean Water Act, which is called into play when homes are built near rivers or wetlands and when builders take steps to avoid storm water runoff from construction sites. “The Clean Water Act has helped the nation make significant strides in improving the quality of our water resources,” Duane Desiderio, NAHB Staff Vice President of Litigation, told Senate leaders during the hearing.

But broadening the scope of the Act to include all waters -- including roadside ditches – within its regulatory reach loads on more regulation without a corresponding environmental benefit, Desiderio explained.

Especially today, with a credit crisis exacerbating the housing slowdown, NAHB believes that Congress should focus its limited time and resources on legislation to help home owners and home buyers, rather than pursue legislative ideas that not only will restrict the industry’s ability to recover but also make new homes more costly, he told senators.

The federal government now has authority over navigable waters, as well as wetlands and other aquatic features that have a substantial connection to those waters. These water bodies are protected for commerce as well as for their biological and ecological well-being – and that’s how it should be, he added.

There has been controversy over the Clean Water Act’s intention since it was enacted 35 years ago. In 2006, the U.S. Supreme Court issued a decision in Rapanos and Carabell that failed to garner a majority of the Court. However, lower courts understand that for a water feature to come within the control of the federal government it must have more than a hypothetical or potential connection to traditionally navigable waters, Desiderio said.

Advocates for expansive federal control seek to bring upland ditches and desert washes within the oversight authority of the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency. But there is no evidence that Congress ever intended to sweep such isolated and remote features into the federal regulatory net, he said.

Builders have reported long backlogs in processing permit applications and in some areas that process has come to a standstill, obstructing all residential construction.

Solving these thorny issues of jurisdiction by expanding Clean Water Act authority to cover all waters, everywhere, would add significant time and costs for both regulators and builders, and will adversely affect the cost of housing, Desiderio said. However, he emphasized that “Clean Water Act regulation cannot go to extreme lengths so as to subvert the Act’s purpose to ‘recognize, preserve, and protect the primary rights and responsibilities of states to control water resources and address water pollution within their borders. . . It would greatly undermine the careful balance among competing policies that Congress, the Supreme Court, and the Executive Agencies have been working towards over the past 35 years.”

http://www.nahb.org/news_details.aspx?newsID=5803

I found this interesting:

Course: Advanced Geographical JDs post Rapanos and SWANCC Canceled
REASON FOR CANCELLATION

quote:

On January 10, 2008, WTI decided to cancel all sessions of the course entitled Advanced Geographical JDs Post Rapanos and SWANCC. We have not made this decision lightly, since we try at all times to conduct the sessions that we announce. However, after examining more completed JD forms from Corps districts around the country than we care to think about, we have yet to find one drainageway, no matter how ephemeral or torturously connected to a traditional navigable water, which the Corps has deemed outside its jurisdiction. While many Corps districts are not regulating isolated wetlands and some are not regulating some ditches (although other ditches are being regulated), we cannot in good faith offer a course teaching a reasoned, technical appraisal of “significant nexus” when the end result of the JD process appears to be preordained. It is our opinion that the current guidance, released in June 2007, is so vague that it can always be used to determine that a waterbody with any connection whatsoever to a TNW – even if the TNW is hundreds of miles away – is a water of the U.S. In actual practice to date, that is exactly how it is being used. Perhaps, after comments on the interim guidance are evaluated, a more reasoned and technically based process will emerge. We will at that time reassess the possibility of offering the advanced jurisdictional course. Until that happens, however, we wish you good luck with your JDs.

http://www.wetlandtraining.com/agjd.html

Andrew,

Excellent post.

To the WTI: Wow!.... Right-on!....A-men!

You seem to have overlooked the fact that the Post Rapanos Guidance was not intended to generate informed balanced decisions with respect to JDs. It was only intended to generate a process and to that end it has been tottally successful. I would not be surprised to see someone develope a training class on understanding the process to conduct a JD. The actual wetland boundary is no longer relevant and as you have recognized, the Corps regulates all of it, wet or dry.

The Wetlands Training Institute said;

"...we have yet to find one drainageway, no matter how ephemeral or torturously connected to a traditional navigable water, which the Corps has deemed outside its jurisdiction..."

With all due respect to the WTI, it appears they overlooked Foot Note 16 in the Rapanos Guidance which clearly states that this document is not official or legally binding on anyone at this time.

It is way too soon to be offering training courses on jurisdictional determinations using the Rapanos Guidance documents. It is not possible to offer credible and applicable instructions on how to utilize this guidance at this stage of the process.

Determining the actual jurisdictional boundary may have to wait until the next generation, and may merit a Nobel prize.

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

The Wetlands Training Institute may have overlooked the fact that in today's world CWA jurisdiction is determined by case law, not unofficial guidance documents.

There are eleven federal appellate court circuits in the U.S. plus the District of Columbia. The boundary of Clean Water Act jurisdiction varies in each circuit.

When the Corps asserts jurisdiction over torturoursly connected ephemeral ditches, it is merely doing what federal courts allow in that particular circuit.

Recently, the Corps published some jurisdictional determination decision letters on its Rapanos Guidance website. These JD's were all performed in circuits which allow either the Scalia or Kennedy interpretation.

The EPA and Corps did not publish JD's performed in Circuits where the courts have a narrow interpretation of CWA jurisdiction. In some Circuits, torturoursly connected ephemeral ditches would not be jurisdictional.

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

I would also point out that (at least in the Omaha District) the Corps has informed me that they are not posting all JD forms on the internet. They claim that with the number of JD forms that they are receiving, they cannot keep the list on the internet up to date, and cannot post every non-JD form. They have actually given me this line in both directions "Well of course that ____ is jurisdicitonal, why would we even have to fill out the form?" or "if we put every non-JD form online that would be all we're doing."

I agree with Johnny though, that it is way too early to be training anyone on this yet, as comments are still coming in, and because it seems that the Corps has thrown out all good science in exchange for the shallow assumption that every drainage pattern is jurisdictional.

Reed Hopper is the Attorney for the Pacific Legal Foundation who won the Rapanos case. Mr. Hopper submitted the following comments on the Rapanos Guidance documents:

"...In the Rapanos case, the Scalia plurality appears more narrowly drawn in that it is a
logical subset of the Kennedy test. The narrow plurality test is more like strict scrutiny whereas the broader Kennedy test is more like rational basis. Even the dissent thought it would be an “unlikely event that the plurality test is met but Justice Kennedy’s is not. Thus, under Marks, the Scalia plurality is controlling. This makes sense from a pragmatic standpoint as well because a water body that satisfies the plurality test would also satisfy Justice Kennedy and even the dissent such that the jurisdictional determination would garner all nine votes on the Court for unanimous support..."

and,

"...The guidance document is inconsistent with the Kennedy opinion in another important respect. According to the memorandum, it is enough if the agencies show that the subject wetlands “have a more than speculative or insubstantial effect” on the traditional navigable water. See page 10. This is incorrect. There is a huge gap between an “insubstantial effect” and the “significant
effect” required by the “significant nexus” test. A fair reading of the Kennedy opinion will
reveal that the Justice was looking for a substantial effect and not merely anything more than a speculative or insubstantial effect. Therefore, if the guidance is to be true to the Kennedy opinion, it must require a demonstration of a substantial chemical, physical and biological effect..."


http://rapanos.typepad.com/PLFcommentsRapanosGuidance.pdf