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Proposed Guidance for Identifying Waters under the CWA (May 2011)

Aaron O. Allen, Ph.D.Chief, North Coast Branch July 21, 2011

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Disclaimer

The following presentation does not represent formal guidance from the U.S. Army Corps of Engineers regarding the Rapanos/Carabell Supreme Court Decisions and the June 2007, December 2008 and Draft May 2011 Joint Guidance documents. Instead, the following information is based on case-by-case jurisdictional decisions that the Los Angeles District has made subsequent to the Rapanos/Carabell decisions

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Clean Water Act Jurisdiction under the Rapanos Supreme Court Decision

Rapanos and Carabell Supreme Court decisions in June 2006 Joint Rapanos Guidance issued in June 2007 Traditional Navigable Waters (TNW) and wetlands adjacent

to a TNW Relatively Permanent Waters (RPW), including intermittent

streams with continuous seasonal flow Wetlands that directly abut a RPW With a fact-specific analysis determining a significant nexus

with a TNW, tributaries and adjacent wetlands within the relevant reach are considered jurisdictional waters of U.S. (in consideration of distance, hydrology, water quality and ecological factors)

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Revised Rapanos Guidance for TNW - December 2, 2008

Includes waters that are currently being used or have historically been used for commercial navigation or evidence showing susceptibility to future commercial navigation which is more than insubstantial or speculative

Commercial navigation can include recreation and examples of commercial waterborne recreation includes boat rentals, guided fishing trips and water ski competitions

Susceptibility for future commercial navigation includes review of physical characteristics (size, depth etc.)

Need for clear documentation/evidence to establish a TNW (and to show future commercial uses are more than insubstantial or speculative)

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Draft Guidance for Identifying WatersMay 2, 2011

Draft Guidance focuses on TNWs, Interstate Waters and Significant Nexus Determinations for tributaries, adjacent wetlands and “proximate” waters

Under the draft guidance, there is a broader definition for TNWs specifically indicating that susceptibility for future commercial waterborne recreation use can be demonstrated by current boating or canoe trips

With the draft guidance, interstate waters are jurisdictional waters of the U.S. and tributaries to interstate waters are also jurisdictional if a significant nexus can be demonstrated with the downstream interstate water

The draft guidance introduces a significant nexus test for waters that are “proximate” to a TNW, interstate water or a jurisdictional tributary

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Significant Nexus Determinations For significant nexus determinations the Draft Guidance

defines waters that are similarly situated as all tributaries, adjacent wetlands or proximate waters within the area draining to the TNW or interstate water

Under the draft guidance, waters have a significant nexus if they alone or in combination with other similarly situated waters in the same watershed have an effect on the chemical, physical or biological integrity of a TNW or interstate water that is more than speculative or insubstantial (same definition as the previous guidance, but a larger scope of analysis)

With the draft guidance, the presence of a bed and bank and an OHWM are physical indicators of flow and it is likely that flows through all the tributaries collectively in a watershed with the above characteristics are sufficient to transport pollutants that would significantly affect the downstream TNW

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Other Waters - “Proximate” Waters Other waters that are in close physical proximity to a TNW,

interstate water or a jurisdictional tributary Under the Draft Guidance “proximate” other waters are non-

wetland waters that would satisfy the regulatory definition of adjacent if they were wetlands

Proximate waters include lakes, ponds and other non-wetland waters that are bordering, contiguous and neighboring to jurisdictional waters

With the draft guidance, the significant nexus evaluation would include all physically proximate waters in the area draining to the TNW and would be evaluated together as similarly situated waters in the region

A hydrologic connection is not necessary to establish a significant nexus because in some cases the lack of a connection would be a sign of the water’s function in the relationship to the TNW or interstate water (retention of flood waters or pollutants)

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Conclusions

Draft Guidance expands scope of analysis for significant nexus determinations to the watershed level

Draft Guidance includes significant nexus evaluation for “proximate” other waters

Under the Draft Guidance interstate waters are jurisdictional and tributaries to interstate waters are subject to a significant nexus evaluation similar to tributaries to TNWs

The draft guidance includes additional information for determining TNWs

The Corps and USEPA will accept comments on the Draft Guidance until August 1, 2011