Below is an email from the EPA explaining how the absence of a hydrologic connection can constitute a significant nexus to navigable waters.
Does anyone have any experience with this?
Thanks,
Randy



Hi Randy,

Here is the follow-up documentation for our conversation regarding a chemical nexus to waters of the U.S. A chemical nexus to waters of the U.S. can occur if a hydrologic connection is present and there is movement of pollutants via run-off and stormwater. This form of nexus has been supported in the EPA-Corps joint memo attached here entitled 'Joint_memo_SPL-2007-261_Ambris.pdf'. A chemical nexus to waters of the U.S. can also occur if there is an absence of a hydrologic connection, where the wetlands retain run-off and pollutants and prevent them from entering a traditionally navigable waterway (in this case, Great Salt Lake). The language to support this comes directly from Justice Kennedy in his Supreme Court decision (see excerpts below).

I hope this documentation helps in your understanding of how a wetland can have a chemical nexus, both with the presence and absence of a direct hydrologic connection to a traditionally navigable waterway.
Please let me know if you have additional questions.
Julia


Statements in Rapanos/Carabell Kennedy Opinion:
“It may be the absence of an interchange of waters prior to the dredge and fill activity that makes protection of the wetlands critical to the statutory scheme.” (Kennedy 26)

“The Court of Appeals ... framed the inquiry in terms of whether hydrologic connection is required to establish a significant nexus. The court held that it is not, and that much of its holding is correct.
Given the role wetlands play in pollutant filtering, flood control, and run-off storage, it may well be the absence of hydrologic connection (in the sense of interchange of waters) that shows the wetlands’
significance for the aquatic system.” (Kennedy 33)



(See attached file: Joint_memo_SPL-2007-261_Ambris.pdf)

Julia McCarthy
Wetlands and Watersheds Unit
Ecosystems Protection and Remediation
U.S. Environmental Protection Agency (8EPR-EP)
1595 Wynkoop St.
Denver, CO 80202
(303) 312-6153
mccarthy.julia@epa.gov

A land ethic, then, reflects the existence of an ecological conscience, and this in turn reflects a connection of individual responsibility for the health of the land. Health is the capacity of the land for self-renewal. Conservation is our effort to understand and preserve this capacity. ~Aldo Leopold

Ms. Julia McCarthy of the EPA said:

"...A chemical nexus to waters of the U.S. can also occur if there is an absence of a hydrologic connection, where the wetlands retain run-off and pollutants and prevent them from entering a traditionally navigable waterway..."

While this opinion may be interesting for purposes of discussion, it is not the law. Under the law (and the Rapanos Guidance documents) any decision regarding a particular water must be based on the applicable statutes, regulations and case law.

In this case, an EPA staffer has offered a personal opinion that is based on some language in the Rapanos decision taken out of context. Her opinon goes beyond the official Rapanos Guidance issued by the Corps and EPA Headquarters, and completely ignores the nexus to interstate commerce.

The regulated public is often confused and has great difficulty distingushing between the law and the personal opinions of regulatory staff. Now we have a situation where the regulated public must deal with an undefined "chemical nexus" in addition to an undefined "significant nexus."

We could soon be wrestling with other nexi such as a spiritual nexus, cultural nexus, psychological nexus, virtual nexus, statistical nexus, ephemeral nexus, electro-magnetic nexus, atmospheric nexus, etc.

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

Johnny,

Good post. One begins to see what we've been up against, here: The free-lancing government activist armed with his/her Aldo Leopold philosophy.

"Chemical nexus"? Why not? Where's David Thomson? It's right outta the goals of the CWA ("....physical, biological and chemical integrity...."), right?

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

Technically the EPA is correct. Wetlands and streams are connected system not merely constrained by over the surface water flow and from a logical standpoint should be protected from the ocean to the headwaters to provide actual water quality improvements and zero loss of wetlands.

The Rapanose decision is vague and poorly worded, written by lawyers for lawyers with very little regard to the actual science of wetlands.

Tommy,
While it might make sense from a logical or scientific stand point to regulate water from cloud to ocean and beyond, the government (executive branch) is constrained by the laws written by the congress. Congress did not pass a law that gave the executive branch (EPA and Corps) the authorization to regulate water is such a way. The courts have repeatedly said this, despite the fact that it is in hard to read legal speak. In short, the Corps cannot regulate water “from the ocean to the headwaters…”, anything they regulate outside of their authority is illegal. This is why the Corps has this ridiculous nexus test.

I do wonder, if the wetland has no hydrologic connection, isn’t it “isolated” under SWANCC, and therefore not regulated? I assume that this is Randy Peterson’s same desert wetland driveway fill issue that came up before. I seem to remember that it was a long way from a river.

Randy, can you put a link to this “Ambris” joint memo on chemical nexus?

It is disconcerting to me that this regulator makes it sound like wetlands that are not actually connected to waterways have a stronger nexus than wetlands that are connected.

This message has been edited. Last edited by: Andrew Geffert,

Andrew asked:

"...Randy, can you put a link to this “Ambris” joint memo on chemical nexus?..."

Andy,
Below is the link. This memorandum is located on the Rapanos Guidance documents website
under supporting documents for "Kennedy Waters."

Unfortunately,only a small number of people in this world understand the concept of "Kennedy Waters" which is very esoteric. Andrew tried to explain the concept to Tommy, I hope it helped.

http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/Kenned...RPW_SPL-2007-261.pdf

I understand Rapanos its legal implications and application just fine. I don't like Rapanos, its needlessly complex, which leads to added expense for my clients. It takes an 8 page form, a 3 page guidance outline and a 60 page guide book just to determine the existence or non-existence a significant nexus for a single site (if you have multiple construction areas/drainages within a site this process gets ugly fast) , now throw in the chemical nexus business just to muddy the waters. Even if you fill out the forms properly the COE official reviewing the document may not agree with your findings.

I am not one to complain about something and not provide a solution. It only took me 10 minutes to come up with two much simpler and cleaner options that would have meet the criteria required under the law to restrict COE regulating in areas its not legally allowed to regulate.

1) The COE shall not attempt to regulate upland and ephemeral areas or isolated wetlands. Short and sweet, but still a little vague

2)The COE shall not attempt to regulate areas further than 50' beyond the soil hydric boundary, nor isolated wetlands. This option is so precise that you can determine it in the field while you are doing the wetland delineation with very little additional effort.

Now all you have to do is add a bunch of legalese to obstifucate it enough to allow lawyers some litigation room and everyone is happy.

Legislating that the sun revolves around the earth, or that some water is of the United States and other water isn’t of the United State, won’t make either so. Attempts to protect water quality will continue to fail to control the growing problem of nitrogen pollution as long as we act on the assumption that some water is “of the United States” and other water is not. This idea is as ludicrous as acting as if the Clean Air Act applies to some air (Air of the United Stated) but not other air. I feel genuine concern for all the people who become ensnared in this at-best-tragic-situation (right vs. right, upstream private property rights vs. rights of everyone downstream who use clean water directly or indirectly) made worse by an ever-evolving legal system based on fantasy rather than physical reality. Basing this system on physical reality would drastically slow the legal evolution and reduce economic surprises and uncertainty. I feel no pity for those who obscure the state of water quality in the U.S. and the processes affecting water quality. A brief examination by them of undergraduate wetland textbooks would disclose how the removal of a wetland that discharges to groundwater that in turn flows to a stream can increase N in the stream. A brief examination by them of those texts would disclose that isolated wetlands (all water enters the wetland directly via precipitation, and all water leaves the wetland directly via evaporation) are about as rare as wetlands in Death Valley. Rather than admit those realities, they would rather invent concepts such as “Kennedy Waters” or regulate/legislate those realities away. I sometimes wonder if such critics actually believe that legal reality trumps physical reality. I sometimes think that no one can be such a fool, but in reality, any of us can be that foolish. If we say it often enough, we can fool ourselves (let alone people who trust our expertise) into believing that the sun revolves around the earth, that wetlands don’t affect downstream water quality, that most wetlands are isolated from the hydrologic cycle, and that economic activity is unaffected by N pollution.

Under the law “Section 328.3 - Definitions.” (see below)
For the purpose of this regulation these terms are defined as follows:
a. The term "waters of the United States" means
1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
i. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
ii. From which fish or s****fish are or could be taken and sold in interstate or foreign commerce; or
iii. Which are used or could be used for industrial purpose by industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the United States under the definition;
5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;
6. The territorial seas;
7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section.
Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.
8. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.

Mr. Nyman,

This "fool" does not wish to live in a country in which the law is administered on the basis that "physical reality trumps legal reality".

“Legal reality” is merely a snapshot of the current cries of the masses that can ebb and flow based on the whims of a mostly uninformed populous. Wetlands should be regulated based on peer-review research of these complex systems.

David McWhoter said:

“...Legal reality” is merely a snapshot of the current cries of the masses that can ebb and flow based on the whims of a mostly uninformed populous...”

Dear David,
The legal reality regarding the old definition of "waters of the United States" (which is referenced above in the post by Andy Nyman) is that the US Supreme Court modified this definition in its SWANCC decision in 2001, and since then federal courts have effectively vacated and nullify this old definition such that the Corps and EPA can no longer enforce Sec 404 of the Clean Water Act.

On March 31, 2008 the federal District Court for the District of Columbia issued a ruling in two consolidated cases: American Petroleum Institute v. Johnson, Civil Action No. 02-2247, and Marathon Oil Co. v. Johnson, Civil Action No. 02-2254, regarding the Environmental Protection Agency’s 2002 SPCC Rule.

The District Court ruled that EPA could not use the definition of “waters of the United States” as codified and defined under 40 CFR § 122.2, for the purpose of enforcing its 2002 SPCC rule. 40 CFR § 122.2 is the exact same definition of "waters of the United States" as Andy references under 33 CFR Part 328.2 (above).

The EPA chose not to appeal this decision and is considering promulgating new regulations to define “waters of the United States” to comply with recent U.S. Supreme Court rulings regarding the geographical limits of federal jurisdiction under the Clean Water Act.

Presently, there is not a legally enforcable defintion of "waters of the United States" and this is why both the Corps and the EPA have curtailed their enforcement efforts.

This is the legal reality of the wetlands regulatory program and not merely a "snapshot of the current cries of the masses." The mostly uninformed populous has little or no interest in wetlands and is far more concerned about global warming.

The "rule of law" and representative democracy are nice ideas, but not when you're stuck with a "mostly uninformed populus", eh, Mr. McWhorter?

Ben Franklin said that, "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote." As I see it, our lamb is blind and has a limp.

The rule of law is paramount to foundation of civil society, but as it stands the something is broken. It is our duty as scientists and professionals to inform the masses, maybe we have failed. If we base our approaches to environmental protection in actual science, rather than the unlikely ideas of isolated wetlands and “private” water, then our efforts might just work.

Does everyone here think the CWA is a success?

This message has been edited. Last edited by: David McWhorter,

Mr. McWhorter,

I like your comment on informing the masses. Representative democracies do better with an informed electorate.

The CWA a success? How can one look at the streams and rivers of the United States, now, and compare them to 1970 and conclude anything but?

I guess success CWA varies greatly upon one’s temporal and geographic perceptive. My evaluation of the CWA may be short sighted, being born in 1981. By consequence of my age, I must rely on the accounts of other pertaining to water quality and wetlands health pre-CWA.

In contrast, where I’m located in south Louisiana, I have recorded staggering rates of wetland conversion to open water. Also at the bottom of the nation’s drain (aka the Mississippi River) I have seen the “dead zone” grow larger than the state of New Jersey. So I will concede that the CWA has done an adequate job, since the Great Lake are no long on fire, but as a nation we can do better.

1981? I got shoes older than that!

David, I think you're confusing the success of the imagined scope of li'l-ol', itty-bitty Section 404 of the CWA, and the success of the CWA as a whole.

David,
The conversion of wetlands to open water in southern Louisiana can not be remedied by the CWA. This is caused by a geological process wherein the seabed is gradually sinking.

The "dead zone" in the Gulf of Mexico is a mystery, comparable to global warming. Both the cause and effects are speculative and political. There have been reports that fish and shrimp are still being caught in the dead zone.

The CWA has served its purpose and has done most of what can reasonably be accomplished to improve the quality of our nation's waters.

Today, the primary functions of the CWA are to provide government jobs for environmental activists, expand federal regulatory control over the lifestyles of ordinary citizens, and prohibit oil drilling.

Mr. Reed does not wish to live in a country in which the law is administered on the basis that physical reality trumps legal reality and he implied that I did. But I never mentioned the basis of the administration of the law in my post; why did he?. Likewise, the posts by Mr. Stevens ignored the crux of this issue, which is that laws based on fantasy (e.g., all wildlife damage can be controlled with non-lethal methods, some water is not of the U.S. whereas other water is not of the U.S.) will be ineffective. And while I agree with Mr. Reed that the CWA has been an overall success, that is irrelevant to the issue here because it ignores the persistent, growing problem of nitrogen pollution. Ignoring nitrogen pollution will not make nitrogen pollution go away, and “ineffective” is an accurate description of the effects of the CWA on nitrogen pollution.

A trend in posts in this and other threads is a refusal to acknowledge four critical facts: (1) water quality laws based on mythical behavior by water will be ineffective (2) wetlands affect nitrogen, (3) people living downstream have rights, and (4) landowners have those same rights and additional rights associated with ownership. I assume that most readers would agree that those are facts, including Mr. Reed and Mr. Stevens even though they would rather distract us from those facts. Why the unrelenting distraction from those facts? I assume it’s an effort, perhaps unconscious, to characterize opposition to wetland regulatory parts of the Clean Water Act as a heroic struggle of right vs. wrong (individual freedom vs. tyrannical government). Regardless of why, such characterization is self-indulgent and apparent in many of those who post on this forum and in some who work for landowners who want to develop their wetlands. But the truth is that the wetland regulatory part of the Clean Water Act is more of a tragic struggle of right vs. right (upstream private property rights vs. rights of everyone who benefits from clean water directly or indirectly).

The four critical facts above contribute to a market failure. A wetland owner bears all the costs of ownership while some wetland benefits (water quality, flood/storm surge protection, wildlife and fish populations) are external to the landowner and captured by others. That’s not fair. One response is to prevent wetland landowners from developing their wetlands, but that’s not a complete fix because landowners are stuck with the costs of ownership while benefits spread throughout society. A better remedy is for those who benefit from wetlands to pay those who own wetlands. Such systems exist (Conservation Reserve Program, Wetland Reserve Program), but unfortunately often are ridiculed as “paying farmers not to farm” when they really are systems in which society pays farmers for benefits provided by their wetlands but captured primarily by others.

Andy,
Amen.

Some tend to push the issue that the Courts are the boogeyman here when really Congress is abrogating their responsibility to write more definitive laws leaving the “defining” of those laws to the courts. Since the courts change their minds periodically is it any wonder things change in the regulatory fields?

On the other hand, were Congress to write laws based on policy stemming directly from “best science” one has to believe that the courts will have less of a need to step in. Physical reality would then tend to trump legal and congressional indecision.

As SWS members I firmly believe WE have a responsibility to “advocate” for the best science possible to be used in the promulgation of our laws and regulations. However, clearly there are other interests around the country which prefer to manipulate the system and having laws and policy based MORE on science appears to run contrary to their interests.

When I was more actively involved, I know that by far the largest numbers of comments I received were associated with getting SWS more involved, both at the US and other country’s lawmaking levels. Your comments, I believe, marry very well with what much of SWS desires.

mark

Gentlemen,

"Best science"? Tell me, is your "best science" limited to water and wetlands? Or does that legal precept apply to all aspects of life? Eugenics, anyone?

You'll pardon the indulgence, but a country governed, as you envision, on the precept of your "best science", scares the Gehenna outta me. I would prefer to leave the decision (as scientifically imperfect as it may be) to the people and their elected representatives as to what cultural values ("best" [whose best?] science, land-use, limited government, property rights, etc.) prevail in our law. That's my understanding of how this country is supposed to work.