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U.S. Army Corps of Engineers' New Nationwide Permits

New York Law Journal

October 27, 2006
by Stephen L. Kass and Jean McCarrol

In June 2006, the U.S. Supreme Court wrestled with, and stirred up a great deal of uncertainty concerning, the circumstances under which the U.S. Army Corps of Engineers has the authority under the Clean Water Act and the Constitution to require permits to dredge or fill wetlands that are adjacent to or drain into "waters of the United States."

As we noted in our column on The Supreme Court Addresses the Clean Water Act (New York Law Journal, June 23, 2006 at p. 3), while the Court's plurality decision in Rapanos v. United States[1] and Carabell v. U.S. Army Corps of Engineers[2] vacated lower court findings that the wetlands in question were waters of the United States and thus subject to Corps' jurisdiction, no single test for jurisdiction commanded a majority of the Court.

Two-Prong Test

The plurality opinion in Rapanos and Carabell, by Justice Antonin Scalia, set out a two-prong test requiring that the regulated wetland have a surface connection to a relatively permanent body of water connected to traditionally navigable waters. Justice Anthony Kennedy's concurring decision proposed a more flexible test, requiring a "significant nexus" to navigable waters to be shown on a case-by-case basis.

The dissent by Justice John Paul Stevens deferred to the Corps' test, which defined waters of the United States as including wetlands adjacent to tributaries of navigable waters. Two other Justices indicated that clearer agency regulations could help resolve these competing concerns. Chief Justice John Roberts, in his concurring opinion, chastised the Corps for failing to revise its regulations after the Court's earlier decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers[3], in which the Court rejected the Corps' assertion of jurisdiction over an isolated body of water. Justice Stephen Breyer, in his dissenting opinion, urged the Corps to promulgate new regulations in order "to make the complex technical judgments that lie at the heart of the present cases (subject to deferential judicial review)."

The Corps of Engineers has now responded to Justice Breyer's and Chief Justice Roberts' suggestions, but in a rather different manner than their opinions suggested. On Sept. 27, 2006, the Corps released for public comment its proposal to modify and reissue its current Clean Water Act Nationwide Permits (NWPs), which expire in 2007.[4]

NWPs are a form of general permit authorized by the Clean Water Act for certain low-impact activities without the need for individualized permit determinations. Under §404(e) of the Clean Water Act, NWPs may only be issued where the authorized activity results in no more than minimal individual and cumulative adverse effects on the aquatic environment.[5] The Corps' proposed NWP amendments can be seen as an effort to use this authority to moot some of the most contentious wetlands disputes by facilitating the issuance of NWPs for development projects that previously required individual permits.

In addition, on Oct. 13, the New York Regional Office of the Corps proposed additional "regional conditions" for the proposed new NWPs.[6] Comments on both the draft NWPs and the regional conditions are due by Nov. 27, 2006. Final NWPs and regional conditions are expected to be issued in January 2007.

Proposed Nationwide Permits

The Corps' proposal makes technical modifications, some potentially significant, to several existing NWPs and adds six new NWPs. Three items of particular relevance to post-Rapanos and Carabell practice are a new NWP for discharges into ditches and canals, changes in the treatment of "ephemeral" streams, and changes to the NWP for reshaping existing drainage ditches. As proposed, the Corps' new NWPs would consist of the 44 existing NWPs, as amended, and six new NWPs, which are designated as A through F.

The Corps' proposal most directly related to the Supreme Court Rapanos and Carabell decision is NWP B, which authorizes discharges into upland ditches and canals that receive water from and divert water into waters of the United States, provided the ditch or canal does not exceed one-acre.[7] This NWP may be intended to avoid the need to make fact-specific jurisdictional decisions for a major category of relatively minor fill activities and to thus reduce the likelihood of litigation under the unclear guidance of Rapanos and Carabell.

The Corps has also proposed another change that, although it expands the reach of the NWP program, should reduce the need to make what is often a difficult fact-specific distinction between "ephemeral" and "intermittent" streams. The proposal increases protection of ephemeral streams (streams for which the primary water source is rainfall and that typically flow only during and for a short time after precipitation events). Under the current NWPs, a number of NWPs (NWPs 29, 39 and 42) apply only when stream bed loss is less than 300 feet. Under the proposed new NWPs, loss of ephemeral streams would now be included in that figure, along with intermittent streams (streams that have groundwater as a source but flow only at certain times of year) and "perennial" streams. Nevertheless, under the proposed amendment, the 300-foot limit could be waived by the Corps on a case-by-case basis for losses of both ephemeral and intermittent streams. The Corps notes that it will also evaluate whether ephemeral and intermittent streams are within its jurisdiction on a case-by-case bases in accordance with the direction of Rapanos, evolving case law, and guidance from executive agencies such as the Department of Justice (which, in the case of the current administration, is unlikely to miss an opportunity to restrict the Corps' jurisdiction). Filling or excavating of these ephemeral stream beds will also be considered as a loss of waters of the United States.

The Corps also proposes to modify its approach to the reshaping of existing drainage ditches. NWP 41 authorizes work to reshape drainage ditches for the purpose of improving water quality, for example by creating gentler slopes that decrease flow velocity, provide more area for plants to become established, and decrease erosion. The Corps proposes to remove a prohibition against permanent sidecasting of excavated material resulting from these ditch reshaping activities into jurisdictional wetlands, which might be adjacent to the ditch. The asserted goal of this modification is to encourage landowners to maintain ditches. This modification too may be intended to respond to the Rapanos and Carabell decisions because it removes a broad category of arguably beneficial activities from the permitting program and reduces the prospect of litigation challenging decisions to deny individual decisions where sidecasting might adversely affect adjacent wetlands.

Finally, it should be noted that the Corps' proposal adds or expands the requirement for pre-construction notifications (PCNs) for activities covered by seven existing NWPs (NWPs 8, 22, 29, 39, 40, 42, and 43), as well as new NWPs A, B, D and E. As the Corps notes, a PCN provides the Corps with the opportunity to evaluate the activity before it is undertaken pursuant to an NWP, and can result in the addition of case-specific conditions.

N.Y. Regional Conditions

Under Corps procedures, regional conditions may be added to NWPs by district engineers after a public notice and comment process and coordination with other federal, state and local agencies. The Corps' New York District has proposed regional conditions for 13 of the 44 proposed NWPs. However, some of these proposals reduce the restrictions set forth in the current regional conditions. The New York District has not proposed any substantive regional conditions specifically for NWPs A through F.

As noted, some current New York regional conditions are more stringent than the proposed new conditions, which generally follow the terms of the amended NWPs. Currently New York's regional conditions for NWP 3 (Maintenance) provide that the removal of accumulated material is limited to 100 feet upstream and 100 feet downstream of the structure. This requirement is more stringent than current NWP 3 (which provides that the removal of sediment cannot extend farther than 200 feet in any direction). For the most part, the proposed NWP 3 retains this 200-foot linear limit for the removal of accumulated sediment; however, the new New York regional condition for NWP 3 no longer includes the 100 linear foot limit of the current condition.

The New York current regional condition for NWP 39 (residential, commercial and institutional developments) is also more limiting than the proposed new condition. The current regional condition provides that, to the maximum extent possible, a permittee must avoid discharging dredged or fill material into open waters and that discharges must not impact more than 200 linear feet of streams. The proposed regional condition does not expressly prohibit the discharge of dredged or fill materials and leaves intact the 300 linear foot limit for ephemeral streams in the proposed NWP 39. Similarly, the New York current regional condition for NWP 42 (recreational facilities) provides that discharges may not impact more than 200 linear feet of streams. Proposed regional condition 42, however, does not modify proposed NWP 42's 300 linear foot limit for ephemeral streams and would allow district engineers to waive the 300 linear foot limit in certain circumstances.

Under New York's current regional conditions, NWP 44 (mining activities) is suspended entirely. However, under the proposed regional conditions, no permit-specific regional condition is proposed to NWP 44, which would therefore remain in effect in the New York district.

Conclusion

Although the Corps has not yet revisited its regulatory definition of "waters of the United States," its proposed new NWP program appears designed to reduce the risk of future Rapanos and Carabell litigation challenging its jurisdictions and case-by-case determinations. Whether this strategy will succeed in avoiding litigation at the cost of losing or compromising wetlands warrants careful monitoring in the future.


Stephen L. Kass and Jean M. McCarroll, together with Clifford P. Case III, direct the environmental practice group at Carter Ledyard & Milburn LLP. Judith Wallace and Candice Jones, associates in the firm's environmental practice group, assisted in the preparation of this column.

Reprinted with permission from the October 27, 2006 edition of The New York Law Journal
© 2006 ALM Properties, Inc.All rights reserved. Further duplication without permission is prohibited.

Endnotes

[1] 376 F3d 629 (6th Cir. 2004), vacated and remanded, 126 SCt 2208, 541 US - (June 19, 2006)

[2] 376 F3d 629 (6th Cir. 2004), vacated and remanded, 126 S. Ct. 2208, 541 US - (June 19, 2006)

[3] 531 US 159 (2001).

[4] See 33 CFR Part 330 (regulations governing application of NWPs); 71 Fed. Reg. 56258 (Sept. 26, 2006) (proposed NWPs); 67 Fed. Reg. 2020 (Jan. 15, 2002) (current NWPs).

[5] 33 CFR §330.1(b).

[6] The Corps of Engineers also promulgates NWPs for its jurisdiction to regulate obstructions in navigable waters under §10 of the Rivers and Harbors Act. NWPs specify whether they address obligations under the Clean Water Act, the Rivers and Harbors Act, or both.

[7] 71 Fed. Reg. at 56274


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