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Section V. US Army Corps of Engineers Determinations of No AMERICA’S VULNERABLE WATERS: Assessing the Nation’s Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States An Environmental Law Institute Report August 2011 ACKNOWLEDGMENTS This report was prepared by the Environmental Law Institute (ELI) with funding from the U.S. Environmental Protection Agency under EPA Wetlands Program Development Grant No. WD- 83417601. The contents of this report do not necessarily represent the views of the Environmental Protection Agency, and no official endorsement of the report or its findings should be inferred. Any errors and omissions are solely the responsibility of ELI. Principal ELI staff members contributing to the project were Philip Womble, Rebecca L. Kihslinger, James M. McElfish, Jr., and Law Clerk Kim Tuthill. ELI also gratefully acknowledges the help of Science and Policy Intern, Eric Sweeney, and the following research interns: Katrina Cuskelly, John Stokes, Lucas Ackerknecht, Tim Allan, Kate Glass, Katelyn Henmueller, Jennifer Jones, Allison Tse, Amanda Vasquez, and Carley Wigod. About ELI Publications— ELI publishes Research Reports that present the analysis and conclusions of the policy studies ELI undertakes to improve environmental law and policy. In addition, ELI publishes several journals and reporters—including the Environmental Law Reporter, The Environmental Forum, and the National Wetlands Newsletter—and books, which contribute to education of the profession and disseminate diverse points of view and opinions to stimulate a robust and creative exchange of ideas. Those publications, which express opinions of the authors and not necessarily those of the Institute, its Board of Directors, or funding organizations, exemplify ELI’s commitment to dialogue with all sectors. ELI welcomes suggestions for article and book topics and encourages the submission of draft manuscripts and book proposals. America’s Vulnerable Waters: Assessing the Nation’s Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States, Copyright © 2011 Environmental Law Institute®, Washington, D.C. All rights reserved. ELI Project No. 0916-01 An electronic retrievable copy (PDF file) of this report may be obtained for no cost from the Environmental Law Institute website at www.eli.org; click on “ELI Publications,” then search for this report. [Note: ELI Terms of Use will apply and are available on site.] (Environmental Law Institute®, The Environmental Forum®, and ELR® – The Environmental Law Institute Law Reporter® are registered trademarks of the Environmental Law Institute.) Table of Contents Sections Section I. Introduction……………………..…………………………………………................................ 1 Section II. Agency Guidance on Jurisdictional Determinations and the Significant Nexus Test…............. 5 Section III. State Wetland Regulatory Programs……………...……………………………...………..…..8 Section IV. Vulnerable Wetlands and Aquatic Resources – What may be at Risk..................................... 18 Section V. U.S. Army Corps of Engineers Determinations of No Jurisdiction (2008–2009)..................... 30 Section VI. CWA §401: State Water Quality Certification........................................................................ 45 Section VII. Analysis – Vulnerable Wetlands and Aquatic Resources....................................................... 56 Figures Figure 1: State Freshwater Wetland Protection Programs……………………………..……………….... 8 Figure 2: U.S. Army Corps of Engineers Regulatory Districts………………………………..…………. 31 Figure 3: Percent of NJD Forms that Identified Isolated Water(s) Outside of CWA Jurisdiction, by Corps District…………………………………………………………….…………………... 35 Figure 4: Percent of NJD Forms that Identified Aquatic Resource Type(s) Outside of CWA Jurisdiction, by Corps District…………………………………………………….…………...... 36 Figure 5: Percent of NJD Forms that Documented Using the Significant Nexus Test and Percent of NJD Forms that Documented the Presence of Isolated Waters, by Corps District………………...… 40 Tables Table 1: State wetland protection programs ……………………..…………………..……………...…... 14 Table 2: Potentially vulnerable waters found in different geographic regions of the United States as identified in the scientific literature and assessments by conservation organizations...………... 18 Table 3: Geographic range of isolated or potentially vulnerable wetlands in the United States…….….. 21 Table 4: Statewide estimates of the extent of potentially vulnerable wetlands and streams following SWANCC and Rapanos………………………………………………………………………….. 24 Table 5: Ecosystem functions of notable vulnerable wetland and stream types ………………..……….. 28 Table 6: Aquatic resource types without CWA protection in Corps NJDs ………………….................... 37 Table 7: Frequency of Corps districts’ use of the interstate and foreign commerce test in NJDs and percent of NJDs with isolated waters…………………………………………………………… 43 Table 8: Aquatic resource types with no or limited review in states that primarily use §401 for freshwater permitting……………………………………………..……...………………………………….. 48 Table 9: Aquatic resource types still reviewed in states that primarily rely on §401 for freshwater permitting…………………………….………………………………………………………...... 49 Table 10: Aquatic resource types with no or limited §401 review in states with freshwater permitting programs—even limited programs...........…………………………………………… 52 Table 11: Aquatic resource types still reviewed under §401 in states with freshwater permitting Programs—even limited program..…….………………………...……………………………… 52 Table 12: Aquatic resource types with no or limited §401 review in states with isolated waters jurisdiction…………………………………………………………………………….……….... 54 Table 13: Aquatic resource types still reviewed under §401 in states with isolated waters jurisdiction… 54 Table 14: Aquatic resource types identified as vulnerable in Corps NJDs or by state §401 staff............. 57 Appendices Appendix 1: Regulation, Extent, and Types of Vulnerable Waters by State .............................................. 66 Appendix 2: Vulnerable Wetland and Aquatic Resource Types Identified in Determinations of No Jurisdiction, by Corps Regulatory Division and District………………….…………..………... 70 Appendix 3: Summary of Key Statistics in NJD Analysis……………………..……………..…………... 74 Appendix 4: Sample Jurisdictional Determination Form…………...…………...………..……………... 76 Appendix 5 (Separate Document): Potentially Vulnerable Wetland Types Identified in Scientific and Conservation Literature, by EPA Region and State……………………………………..……… 84 AMERICA’S VULNERABLE WATERS Executive Summary In the United States, wetlands, streams, and other aquatic resources are protected by a combination of federal, state, and local laws, regulations, and policies. At the federal level, aquatic resources are regulated under the Clean Water Act (CWA). The requirements of the Act apply only to “navigable waters,” which are defined as “waters of the United States, including the territorial seas.”1 For most of the history of the Act, a broad definition of “waters of the United States” was used to assert jurisdiction. However, two recent Supreme Court cases have left some uncertainty around what waters can be regulated under the CWA. In 2001, in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers2, the U.S. Supreme Court found that CWA protections do not extend to certain “isolated” waters. By most accounts, the SWANCC decision resulted in a loss of protection for many geographically isolated wetlands. In 2006, in Rapanos v. United States3, the Supreme Court established several CWA jurisdictional tests—including the “significant nexus with navigable waters”4 test articulated by Justice Kennedy—to determine the types of wetlands and aquatic resources regulated under the Act. In 2008, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) released guidance to identify the waters over which the agencies will assert jurisdiction categorically and on a case-by-case basis following Rapanos. The 2008 guidance directs the agencies to use a case-specific, significant nexus test to determine jurisdiction over non-navigable tributaries that are not relatively permanent, wetlands adjacent to non-navigable tributaries that are not relatively permanent, and wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary.5 In 2011, the Corps and EPA released draft guidance for comment, which will supersede the 2008 guidance when it is issued in final form.6 The uncertainty in the federal protection of freshwater resources left by SWANCC and Rapanos has heightened the importance of state regulatory and non-regulatory programs that protect aquatic resources. Waters and wetlands falling outside CWA coverage are referred to in this study as “vulnerable wetlands and aquatic resources.” In order for state and local governments to effectively fill the gaps in CWA coverage, it is essential to have a well- articulated assessment of what aquatic resources are currently going without federal protection in each area of the country. Determination of the types of wetlands and waters that are no longer protected by the CWA can help target supplemental resources and programs, including non- regulatory conservation measures and compensatory mitigation. Such an assessment can also 1 33 U.S.C. §1362(7). 2 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 162 (2001). 3 Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208 (2006). 4 Rapanos v. United States, 126 S.Ct.
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