Does this picture show a waterbody that should fall under federal protection pursuant to the Clean Water Act?
Do you believe this is a stream that has a "significant nexus" to a navigable waterway (current test established under Rapanos by Supreme Court Justice Kennedy)
Is it reasonable to require a Federal Section 404 and State 401 Water Quality Permit in order to fill this drainage way adjacent to the road?
Well, the Army Corps of Engineers (ACOE) issued a Jurisdictional Determination (JD) finding that this is a federally protected stream. This is a perfect example of why so much controversy surrounds the extent of federal jurisdiction under the Clean Water Act.
Recap of Rapanos
Since Rapanos, Justice Kennedy’s “significant nexus” test has been used to determine jurisdiction for streams and wetlands. Under the test, a waterway is evaluated to determine whether it impacts the chemical, physical, and the biological integrity of a navigable water. If it does impact a navigable water in that manner, then it falls under federal jurisdiction.
The significant nexus test is really a legal test, not a scientific one. As such, the test is very subjective. As a result, litigation has ensued over whether streams and wetlands fall under federal jurisdiction.
ACOE Extends its Reach
The ACOE applies the "significant nexus" test in making a JD. It is the initial step in the process. However, as previously discussed in a recent post, it is difficult for a landowner to challenge a JD issued by the ACOE. Their choice if they disagree with the Corps determination is either to proceed with the project and risk fines or acquiesce and initiate the permitting process.
Perhaps in full recognition that most landowners will not fight a JD issued by the ACOE, certain Districts of the ACOE have been aggressive in their application of the "significant nexus" test. The picture demonstrates one such example.
Impact on EPA Rule
In attempt to address the increasing amount of litigation and uncertainty surrounding which water bodies fall under federal regulation, EPA released is proposed rule- "Definition of 'Waters of the United States' Under the Clean Water Act". The rule was released on March 25, 2014.
Many in the business community have commented that EPA's proposed rule provides certainty by purporting to regulate virtually all waterways. The rule proposal contains an entirely new definition of "tributary," which under the proposed rule, would be classified as jurisdictional waters with no further analysis. Under the proposal, a “tributary” is any waterway that meets the following characteristics:
- Can have perennial, intermittent or ephemeral flow
- Has a defined bed, bank and ordinary high water mark (a term defined under existing regulations)
- Contributes flow, either directly or through another water, to as jurisdictional water
- Or, is part of a network that drains to a jurisdictional water
The Agency's proposed rule is controversial due to its open ended language providing discretion to capture almost anything as a federally protected stream.
Take the picture above, it could be argued this ditch has intermittent flow. It may have a defined bed and bank. If you traced its connections long enough, you probably could find another waterway to which it contributes flow.
It is understandable why EPA would want to maintain the flexibility to broadly assert federal jurisdiction. There are many small tributaries that can impact water quality if destroyed. EPA is worried about leaving such tributaries unprotected and allowing large impacts to those waterways with no oversight.
However, broad language cuts the other way as well. The roadside ditch in the picture can also be deemed legally protected. As such, the landowner, municipality or developer is forced to navigate a lengthy and costly permitting process to impact the ditch.
A Reasonable Compromise?
Perhaps the vagueness of the "significant nexus" test isn't such a bad thing. It allows those small tributaries to be protected. At the same time, the test allows for a legal demonstration that a small waterway is not worth protecting because it has no real value.
The issue is the inability of landowners to cost effectively challenge JD issued by the Corps. Perhaps establishing an administrative appeal process that would allow for quick challenges to JD determinations would be a reasonable compromise.
[UPDATE: AFTER FURTHER INTERNAL REVIEW, I HAVE BEEN INFORMED THE ARMY CORPS AGREED TO NOT CALL THIS DITCH A JURISDICTIONAL WATERWAY]