Watershed Warrior: February 2012

Guideline Changes for Wetlands and Waterways

on Oct.18, 2011, under Infrastructure

Wetlands & Waterways: Changes in jurisdictional determination approach will expand protection
On July 31st, the U.S. EPA and Army Corps of Engineers closed the comment period on their proposed guidance for identifying Waters of the U.S. that would be protected under the Clean Water Act. Most are probably familiar with the current guidance that requires a “continuous surface connection” between a wetland, water body, or waterway and navigable waters in order for Clean Water Act protection to be extended and the water in question to be deemed jurisdictional. The most common consequence of a jurisdictional determination for public works projects is the requirement for a Section 404 permit from the Corps. The proposed guidance has stated that it will “provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act.” They go on to state that “based on relevant science and recent field experience, that . . . . the extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent of waters over which jurisdiction has been asserted under existing guidance.” Because of this assertion, owners need to be aware that project costs and schedules are likely to increase.
Why the change?
The most recent Supreme Court decision regarding the issue of wetlands was Rapanos vs. United States 547 U.S. 715 (2006). In this case, the Court issued five different opinions with no single opinion representing a majority. Justice Scalia’s plurality opinion has served as the foundation for jurisdictional determinations. His opinion contained the view that only wetlands with a continuous surface connection to other jurisdictional waters were protected by the CWA. The agencies now plan to expand the decision making process to include views contained in Justice Kennedy’s concurring opinion. Justice Kennedy’s opinion asserts that a wetland with a “significant nexus” to traditional navigable waters should also be protected, as well.
Significant nexus
The guidance gives insight into when a significant nexus exists. It says “Waters have the requisite significant nexus if they, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters or interstate waters.” These three criteria underlined for emphasis are further explained as:
1) Similarly situated waters will be defined as a tributary, adjacent wetland (i.e. has a continuous surface connection), or is in “close physical proximity” to a protected waterway.
2) In the region is defined as lying within a watershed that drains to a navigable waterway.
3) Significantly affect the chemical, physical, or biological integrity cannot be “speculative or insubstantial,” but no longer is the surface connection neccessary. Now a connection can be justified by sub-surface hydrologic connections and, in some cases ecological connections. The guidance encourages field staff to look for the following examples of how the effect can be substantiated.

· Physical/ Hydrology: Does the water provide transport of suspended materials, water retention, or a movement of aquatic organisms, or release of retained waters to other waters?
· Chemical: Does the water have capacity to carry pollutants or flood waters to downstream navigable waters? To what extent can the water reduce the amount of pollutants or flood waters? To what extent can the waters perform physical functions related to maintenance of downstream water quality such as sediment trapping?
· Biological: Does the water have capacity to transfer nutrients to downstream food webs? Does the water provide maintenance of habitat for resident aquatics species (e.g. amphibians, aquatic turtles, fish or waterfowl)?

The guidance is unclear as to what degree the above indicators must be proven. For example, will it require a specific study conducted within the watershed? Or will academic literature that describes the general benefits of similarly functioning waters within a different watershed be sufficient evidence on which to base a decision. Many of the chemical, physical, and biological benefits of nearly all waters are widely known and accepted. Will this general industry knowledge be sufficient evidence to extend protection? To us, these are the questions that remain to be answered. We’ll continue to seek out clear guidance from the agencies with jurisdiction over your projects, but in the meantime want to make you aware of these pending changes.
You can read the full text of the guidance at the following link, from which the information and quotes above were taken. http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf
Prepared by: Steven Beam, P.E., LEED AP / Vice President for Infrastructure/ Rogers, AR