Presenting a live 90-minute webinar with interactive Q&A Navigating Jurisdictional Determinations Under the Clean Water Act: Impact of U.S. Army Corps of Engineers v. Hawkes THURSDAY, SEPTEMBER 29, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Christopher J. Carr , Partner, Morrison & Foerster , San Francisco Dr. Michael Josselyn, Principal, WRA , San Rafael, Calif. Kirsten L. Nathanson, Partner, Crowell & Moring , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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U.S. Army Corps of Engineers v. Hawkes Co. Overview, Connections, and Signals Kirsten L. Nathanson September 29, 2016
Overview Legal framework Facts of the case The Supreme Court decision Connections – to Sackett – to WOTUS Signals from the Court 6
Legal Framework Clean Water Act – Prohibits discharge of pollutants to waters of the United States (WOTUS) without a permit – Civil and criminal penalties for violations • Negligent level for criminal penalties; civil penalty is now $51,570 per violation per day – Section 404 provides for permits for the discharge of fill material • Administered by the Corps; both the Corps and EPA can enforce – Corps can specify whether WOTUS is present through a jurisdictional determination (JD) • Preliminary JDs; Approved JDs; Negative JDs 7
Facts of the Case Three peat mining companies in Minnesota sought expanded operations in areas containing wetlands Corps issued an Approved JD specifying various wetlands as WOTUS – Basis was a “significant nexus” to the Red River of the North – 120 miles away Mining companies took administrative appeal to the Corps – Corps affirmed Mining companies bring suit in federal district court seeking judicial review under the Administrative Procedure Act (APA) – District court dismissed case for want of jurisdiction – no final agency action – Eighth Circuit reversed; Supreme Court granted certiorari 8
Supreme Court Decision Two components to the holding: – JDs are final agency action – The mining companies had no adequate alternative to challenging the JD in court Final agency action – application of two part test from Bennett v. Spear : – Consummation of agency decisionmaking – not disputed – An action from which legal rights or obligations are determined; or from which legal consequences flow • Corps argued no legal consequences from the JD itself 9
Supreme Court Decision Legal consequences of JDs – Court looked to consequences of negative JDs – five-year safe harbor from enforcement • Focus on Memorandum of Agreement (MOA) between Corps and EPA – An approved JD carries the consequence of denying the safe harbor No adequate alternative to APA review – APA Section 704 – Corps said that review was available upon a discharge enforcement action or in a challenge to a permit – Supreme Court applied Sackett and held that neither option was adequate 10
Supreme Court Decision Concurring opinions – Kennedy (with Thomas and Alito) – express continuing concerns over “reach and systemic consequences of the CWA” • Without a JD procedure, there are “troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation” – Kagan –the MOA “is central to the disposition of this case” – Ginsburg – the JD is final irrespective of the MOA – the US does not agree with the Court’s reading of the MOA • Tension with ripeness case law 11
Connections Connections to WOTUS – JDs are at the core of WOTUS Connections to Sackett v. EPA – Pre-enforcement review of agency compliance order 12
Signals Clues for future of WOTUS litigation – Characterization of scope of 404 program – Discussion of cost of permitting – “the Act’s ominous reach” – Whether the CWA comports with due process Implications for future JD practice – Do JDs carry legal consequences absent the MOA; is the warning within a JD sufficient 13
Kirsten Nathanson Crowell & Moring, LLP Washington, DC knathanson@crowell.com 14
Navigating Jurisdictional Determinations Under the Clean Water Act: Impact of U.S. Army Corps of Engineers v. Hawkes Practical aspects of wetland determinations under Corps procedures Michael Josselyn, PhD, PWS SAN RAFAEL SAN DIEGO DENVER FORT BRAGG (415) 454-8868 (415) 454-8868 SAN RAFAEL SAN DIEGO FORT BRAGG DENVER EMERYVILLE 15 SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868
Delineation Procedures • Wetland Delineation Guidance – 1987 Corps Manual – Regional Supplements – Manuals to Ordinary High Water Mark • Most delineations prepared by applicant and submitted to Corps for verification – Exception in Enforcement Cases • Two types of verification – Preliminary Jurisdictional Determination – Approved Jurisdictional Determination • Appeal process 16 SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868
Wetland Delineation Guidance To many people, wetland determinations under CWA are a mystery 17 SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868
Section 10 and 404 boundaries 18 SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868
Wetland Definition Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Generally referred to as the three parameter approach: 1. Wetland Hydrology: Continuous saturation or inundation for 14 days during growing season 2. Hydric Soils: Soil appearance meets certain indicators typical of wetland conditions 3. Hydrophytes: Dominance by plants categorized by Corps as having wetland affinity 19 SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868
Non-wetland waters The lateral limits of jurisdiction over non-tidal waters bodies extends to the ordinary high water mark (OHWM) and for tidal water bodies to the High Tide Line (HTL) Ordinary High Water Mark --- a line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. High Tide Line --- the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. 20 SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868
Typical Delineation Map 21 SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868
SWANCC and Rapanos • SWANCC – Isolated wetlands may be outside CWA jurisdiction – Vernal pools, potholes, and other features that lack a hydrologic connection • Rapanos – Intermittent and ephemeral tributaries may be outside CWA jurisdiction – Significant Nexus test required for such tributaries and adjacent wetlands 22 SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868
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