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Regulators Discuss Post-Rapanos Wetlands Guidance
Two hundred builders, developers, miners and others affected by new Clean Water Act guidance in the wake of the U.S. Supreme Court’s 2006 decision in the Rapanos and Carabell lawsuit went to Phoenix this month to get answers from federal regulators.
Representatives from the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency were invited to discuss the new guidance in a Sept. 13 seminar hosted by NAHB, the National Mining Association and Hunton & Williams, a law firm with a specialty in environmental issues.
After half a day of presentations, discussions and many questions, participants learned that neither the regulators nor the regulated community have final answers or explanations on wetlands permitting, but the agencies are continuing to work on it.
About 110,000 jurisdictional determinations are made by the Corps each year, resulting in about 100,000 permits.
EPA and the Corps emphasized that wetlands jurisdiction decisions are now “fact-intensive and site-specific,” with each jurisdictional decision made on a case-by-case basis.
The Rapanos workshop was named after a 2006 Supreme Court decision that addressed the issue of jurisdiction over “waters of the U.S.” under the Clean Water Act. The court decision led to the June 8, 2007 publication of new guidance from EPA and the Corps on wetlands permitting under Section 404 of the Clean Water Act.
Discharge permits are required in wetlands adjacent to traditional navigable waters, officials said, but swales and ditches are not normally jurisdictional.
One significant change in the guidance is that the agencies have determined that “traditionally navigable waters” do not have to be navigable at all times, navigable along their full reach or used today for commerce to be determined jurisdictional.
Dry washes and ephemeral streams must undergo a “significant nexus” test to determine if they are jurisdictional. A wetland may show a significant nexus when it is determined that it has an impact on the chemical, physical or biological integrity of a downstream navigable water.
However, said agency representatives, the decision on whether a significant nexus exists between a wetland and a traditionally navigable water is not a scientific decision no matter how much data is accumulated. It is a value judgment, officials said.
In the end, both the Corps and the EPA have to agree to either take jurisdiction or deem an area nonjurisdictional, and this decision can come from as high as the EPA administrator or the assistant secretary of the Army.
While the guidance sets up an elaborate coordination procedure to ensure that a decision is reached in a timely fashion, few test cases have been heard since the guidance was issued.
The Corps is also allowing a certain amount of permit “grandfathering.” Jurisdictional determinations made before the Rapanos guidance was issued do not have to be reevaluated unless and until the permit needs to be extended. While the agencies will consider requests for new delineations for these circumstances, they are strongly urging permit applicants to retain their existing determinations so they don't add to their administrative burdens.
When one participant asked if applicants can just accept the agencies' jurisdiction and escape the burdensome and costly significant nexus test, the answer was no because the agencies need to document their decisions. And since June 8, all permit applicants must go through the Rapanos tests, including the significant nexus test, if applicable.
The Corps and EPA are accepting public comments on the guidance until Dec. 5, although the deadline may be extended if the public requests it, officials said. The comments will help the agencies decide whether they should reissue, revise or suspend the guidance.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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