Swamp Stomp

Volume 14, Issue 1

Hello and welcome to 2014. Happy New Year!

I thought I would start off the first Swamp Stomp of 2104 with a bang. The end of last year was just a warm up to the new plans EPA and the Corps have been cooking up for us. This year we can expect it to be implemented.

What I am talking about?

EPA news rules for what is a jurisdictional waters of the US.

One of the major cornerstones of the new rules is an understanding of the concept of “significant nexus.” This concept arose from the Rapanos and Carabell case that went before the Supreme Court in 2006. In the eight or so years since that case, we have been left pondering what exactly Justice Kennedy was saying with his term significant nexus. He never really defined it.

To better understand where this is going you have to understand that the Supreme Court did not render a majority opinion in the Rapanos case. Justice Kennedy concurred with the plurality opinion, but his opinion was his alone. He held that a wetland or non-navigable water-body falls within the Clean Water Act’s ambit if it bears a “significant nexus” to a traditional navigable waterway. Such a nexus exists where the wetland or water-body, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway.

For the past seven years The US Army Corps of Engineers (Corps) and the US Environmental Protection Agency (EPA) have been utilizing draft guidance to determine what is a jurisdictional water and what is not. This took the form of a non-binding guidance document developed by the Corps and draft regulatory guidance developed by the EPA in 2011. The later was withdrawn in October of 2013.

So what is a significant nexus?

The existing understanding of significant nexus includes two parts. First, there must be a connection to a downstream waters of the US. Second, the area in question must have an effect on the chemical, physical, or biological integrity of traditional navigable water.

The problem is with the second statement. There seems to be a cause and effect relationship between the suspect water and the established downstream traditionally navigable water. The problem is how do you assess an effect of a system that has not yet been affected? Can we assume that our upstream impact will cause a downstream “significant” impact? Likewise, what if there is no planned impact to the upstream water. We just want to know if the water-body in question is jurisdictional.

In September, 2013 the EPA prepared a report that summarized the latest published documents of the connectivity of wetland and streams to downstream waters. The short version of this report is that almost every water-body is connected to every other water-body. This is especially true when it is raining. Water seems to go everywhere! However, is it significant? The report never addresses that point!

Significant

According to Webster:

Full Definition of SIGNIFICANT

1: having meaning; especially : suggestive
2a : having or likely to have influence or effect : important; also : of a noticeably or measurably large amount
b : probably caused by something other than mere chance

In the EPA guidance they suggest that significant is more than “speculative or insubstantial.”

Based upon a review of the September 2013 EPA report it would seem that the burden of proof that a project does not have a significant impact to downstream waters remains with the applicant. One major concern with the EPA report is that it does not discern between insignificant and significant. In fact it would appear that all connections are significant.

Nexus

Again according to Webster:

Full Definition of NEXUS

1: connection, link; also : a causal link
2: a connected group or series
3: center, focus

Nexus is kind of a funny term to have been used to define a jurisdictional water. It speaks directly to cause and affect relationship. The casual link is the key to understanding perhaps what Justice Kennedy meant. He could have said just “link.” But that does not adequately describe the relationship. It is not just that the two water-bodies are linked, but rather the link is the cause of a downstream affect. When you add significant to the phrase you can assume that Justice Kennedy envisioned water relationships that were insignificant as well as significant. Otherwise why not just say nexus?

A glance into the future

The following is from the leaked draft of the new EPA waters of the US rules. It is from page 31 of part 1.

Significant nexus: The term significant nexus means more than speculative or insubstantial effect that a water, including wetlands, either alone or in combination with other similarly situated waters in the region (i.e., the watershed that drains to a water identified in paragraphs (a) (1) through (3) of this section), has on the chemical, physical or biological integrity of a water identified in paragraphs (a) (1) through (3) of this section. “Other waters,” including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or close to a water of the United States so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical or biological integrity of a water a identified in paragraphs (a) (1) through (3) of this section.

Yes, that means non-wetlands can provide the significant nexus connection to make a landscape feature jurisdictional. These non-wetland areas may also be jurisdictional due to the nexus they provide.

If you want to dive into this deeper, please consider joining us at one of our NEW EPA RULES classes this winter and spring.

Have a great week!

Marc