Tag: Clean Water Act

Understanding Jurisdictional Determinations: Pipes and Swales as Continuous Surface Connections

Background

The U.S. Environmental Protection Agency (EPA) and the Office of the Assistant Secretary of the Army for Civil Works (OASACW) recently issued a joint memorandum addressing the jurisdictional determination (JD) for NAP-2023-01223. This memorandum clarifies the criteria for wetlands to be considered “waters of the United States” (WOTUS) under the Clean Water Act (CWA), following the Supreme Court decision in Sackett v. EPA. This decision is pivotal in determining when wetlands are jurisdictional, requiring a continuous surface connection to navigable waters or other recognized WOTUS.

Summary

The joint memorandum returned the draft approved JD to the Philadelphia District for revisions, ensuring alignment with the Supreme Courtā€™s Sackett decision. The Sackett ruling specifies that wetlands must have a continuous surface connection to waters recognized as WOTUS to fall under CWA protection. This blog post will delve into the critical role of pipes and swales in maintaining this continuous surface connection, thus impacting the jurisdictional status of wetlands.

Assessment of Adjacent Wetlands Consistent with Sackett

The Sackett decision mandates that adjacent wetlands must have a continuous surface connection with traditionally navigable waters or other WOTUS. This standard, first established in the Rapanos plurality opinion, does not require the wetlands and waters to be visually indistinguishable but emphasizes a clear, physical connection. It is important to note that the term “indistinguishable” in this context does not imply a visual similarity; instead, it refers to the physical and hydrologic connection that allows the wetland to function as part of the broader aquatic ecosystem.

Pipes as Continuous Surface Connections

Context and Application

Infrastructure Role: Pipes and culverts are essential for maintaining hydrologic connectivity across roadways, preventing flooding and erosion. They ensure a continuous flow of water between aquatic resources on either side of the road.

Jurisdictional Determination: During storm events and high water flow periods, these pipes help maintain a physical connection between wetlands and relatively permanent waters, supporting their jurisdictional status under the CWA.

Case Example: Wetlands Area #6

Location: Camden Wyoming, Delaware.
Connection: Wetlands Area #6 connects to Red House Branch via a 70-foot pipe under Willow Grove Road.
Hydrologic Role: This pipe ensures continuous surface water flow from Wetlands Area #6 to Red House Branch, meeting the criteria for an adjacent wetland.

Swales as Continuous Surface Connections

Context and Application

Natural and Constructed Features: Swales, which can be natural or constructed, convey water from surrounding uplands and wetlands. They often carry low-frequency and low-volume flows, which can be crucial for maintaining jurisdictional connectivity.

Evidence of Flow: Observations of water flow in swales, especially following precipitation events, provide critical evidence of a continuous surface connection between wetlands and relatively permanent waters.

Case Example: Wetlands Area #8

Location: Camden Wyoming, Delaware.
Connection: Wetlands Area #8 connects to Waters Area #2, a relatively permanent impoundment, via a 350-foot swale.
Hydrologic Role: Observations of water flow in the swale after rain events demonstrate the physical connection necessary for jurisdictional status.

Legal and Regulatory Framework

Clean Water Act (CWA) Provisions: Regulations at 33 CFR 328.3(a)(4) and 40 CFR 120.2(a)(4) outline the conditions under which wetlands are considered adjacent and thus jurisdictional.

Supreme Court Decisions: The Sackett and Rapanos rulings provide the judicial framework for the continuous surface connection requirement, emphasizing the importance of physical and hydrologic connectivity.

Factors Considered in Assessments:

  • Physical Indicators of Flow: Evidence such as surface water flow during storm events and physical connections like pipes and swales.
  • Length and Nature of Connection: The physical characteristics of the connection, such as length and whether it is manmade or natural.

Practical Implications

Recognizing pipes and swales as continuous surface connections has several practical implications:

  • Infrastructure Design: Encourages designs that maintain hydrologic connectivity, supporting wetland preservation.
  • Regulatory Compliance: Assists regulatory bodies and stakeholders in making informed jurisdictional determinations consistent with the CWA and Supreme Court rulings.
  • Environmental Protection: Ensures that connected wetlands receive appropriate regulatory protections, contributing to broader water quality and ecosystem health goals.

Conclusion

The joint memorandum provides detailed guidance on when pipes and swales can meet the continuous surface connection requirement for wetlands, emphasizing context-specific assessments. By examining physical connections and hydrologic evidence, regulatory agencies can make informed determinations that align with the legal standards established in Sackett and Rapanos. This approach ensures that wetlands that truly function as part of the broader aquatic ecosystem are appropriately regulated and protected under the CWA.

Keywords: jurisdictional determination, Clean Water Act, wetlands, continuous surface connection, Sackett v. EPA, Rapanos, pipes, swales, hydrologic connectivity, WOTUS, environmental protection, EPA.

EPA and Army Corps of Engineers Withdraw Interpretive Waters of the U.S. Rule

Swamp Stomp

Volume 15, Issue 7

On January 29th, 2015, the EPA and Army Corps of Engineers announced a memorandum of understanding to withdraw the Interpretive Waters of the U.S. Rule. The “U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A)” originally outlined which conservation activities provide farmers an exemption from Clean Water Act permitting.

In the ā€œCromnibusā€ funding legislation that was passed in December 2014, Congress requested that the EPA and Army Corps of Engineers officially withdraw the IR due to ā€œover burdensomeā€ regulations on farming and ranching. Congress concluded that the rule not only created uncertainty instead of clarity, but also threatened fines of up to $37,500 per day.

Some members of Congress spoke in opposition to the rule before the legislation was passed requesting that the rule be withdrawn. Last October, Republican members of the Senate Ag Committee advised that the IR would move the NRCS into an enforcement role instead of creating a trusted source for conservation assistance.

The senators claimed, ā€œThis unique relationship is built on voluntary conservation programs and a mutual commitment to protecting natural resources and keeping land in agriculture. Bringing USDA into the Clean Water Act permitting process would profoundly shift the nature of this successful approach by dismantling a longstanding partnership between the Federal government and agriculture community.ā€

The rule offered 56 ā€œnormal farming and ranchingā€ exemptions under Natural Resources Conservation Service regulations. However, most farm groups opposed the rule. The opponents to the rule argued that using these practices as CWA exemptions would alter farmer-NRCS interaction and dispirit environment best practices.

Robert Bonnie, the Under Secretary for the Natural Resources and Environment at the USDA, however, claimed that any practices implemented by the rule would be voluntary, and are designed to assist farmers avoid the time and cost of permitting.

Bonnieā€™s claim was refuted by the Senior Director of Regulatory Relations at the American Farm Bureau Federation, Don Parrish. He said, ā€œI heard Mr. Bonnie say that the only way to be in compliance with the Clean Water Act is if you do these 56 practices the way NRCS standards say you have to do themā€”and they are very prescriptive, they use a lot of ā€˜shallsā€™ā€”if a farmer builds a fence that does not comply with NRCSā€™ standards, the cloud then is that heā€™s violated the Clean Water Act.ā€

On February 2, 2015, Jamie Jonker, vice president for sustainability and scientific affairs for the National Milk Producers Federation, stated, ā€œOur concern with the initial proposal from last year is that it could have altered the longstanding and productive relationship between farmers and the USDAā€™s Natural Resources Conservation Service, in a way that would have made it harder for farmers to implement water conservation measures.ā€

The official IR withdrawal notice was put into effect on January 29, 2015. The Waters of the U.S. proposal, however, remains in consideration by the EPA and the Army Corps of Engineers. The final comment period on the full ā€œWaters of the U.S.ā€ proposal closed November 14, 2014.

The memorandum withdrawing the Interpretive Rule can be found here: http://www2.epa.gov/uswaters/memorandum-withdrawing-interpretive-rule