Navigating Jurisdictional Determinations Under the Clean Water Act: - - PowerPoint PPT Presentation

The audio portion of the conference may be accessed via the telephone or by using your computer's

• speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

Presenting a live 90-minute webinar with interactive Q&A

Navigating Jurisdictional Determinations Under the Clean Water Act: Impact of U.S. Army Corps of Engineers v. Hawkes

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, SEPTEMBER 29, 2016

Christopher J. Carr , Partner, Morrison & Foerster, San Francisco

• Dr. Michael Josselyn, Principal, WRA, San Rafael, Calif.

Kirsten L. Nathanson, Partner, Crowell & Moring, Washington, D.C.

Tips for Optimal Quality

Sound Quality If you are listening via your computer speakers, please note that the quality

• f your sound will vary depending on the speed and quality of your internet

connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-755-4350 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926

• ext. 35.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

U.S. Army Corps of Engineers v. Hawkes Co. Overview, Connections, and Signals

Kirsten L. Nathanson September 29, 2016

• Legal framework
• Facts of the case
• The Supreme Court decision
• Connections

– to Sackett – to WOTUS

• Signals from the Court

Overview

6

• Clean Water Act

– Prohibits discharge of pollutants to waters of the United States (WOTUS) without a permit – Civil and criminal penalties for violations

• Negligent level for criminal penalties; civil penalty is now

$51,570 per violation per day – Section 404 provides for permits for the discharge of fill material

• Administered by the Corps; both the Corps and EPA can enforce

– Corps can specify whether WOTUS is present through a jurisdictional determination (JD)

• Preliminary JDs; Approved JDs; Negative JDs

Legal Framework

7

• Three peat mining companies in Minnesota sought expanded operations in

areas containing wetlands

• Corps issued an Approved JD specifying various wetlands as WOTUS

– Basis was a “significant nexus” to the Red River of the North – 120 miles away

• Mining companies took administrative appeal to the Corps

– Corps affirmed

• Mining companies bring suit in federal district court seeking judicial

review under the Administrative Procedure Act (APA)

– District court dismissed case for want of jurisdiction – no final agency action – Eighth Circuit reversed; Supreme Court granted certiorari

Facts of the Case

8

• Two components to the holding:

– JDs are final agency action – The mining companies had no adequate alternative to challenging the JD in court

• Final agency action – application of two part test from Bennett v.

Spear: – Consummation of agency decisionmaking – not disputed – An action from which legal rights or obligations are determined; or from which legal consequences flow

• Corps argued no legal consequences from the JD itself

Supreme Court Decision

9

• Legal consequences of JDs

– Court looked to consequences of negative JDs – five-year safe harbor from enforcement

• Focus on Memorandum of Agreement (MOA) between Corps and

EPA – An approved JD carries the consequence of denying the safe harbor

• No adequate alternative to APA review – APA Section 704

– Corps said that review was available upon a discharge enforcement action or in a challenge to a permit – Supreme Court applied Sackett and held that neither option was adequate

Supreme Court Decision

10

• Concurring opinions

– Kennedy (with Thomas and Alito) – express continuing concerns over “reach and systemic consequences of the CWA”

• Without a JD procedure, there are “troubling questions

regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation” – Kagan –the MOA “is central to the disposition of this case” – Ginsburg – the JD is final irrespective of the MOA – the US does not agree with the Court’s reading of the MOA

• Tension with ripeness case law

Supreme Court Decision

11

• Connections to WOTUS

–JDs are at the core of WOTUS

• Connections to Sackett v. EPA

–Pre-enforcement review of agency compliance order Connections

12

• Clues for future of WOTUS litigation

– Characterization of scope of 404 program – Discussion of cost of permitting – “the Act’s ominous reach” – Whether the CWA comports with due process

• Implications for future JD practice

– Do JDs carry legal consequences absent the MOA; is the warning within a JD sufficient

Signals

13

Kirsten Nathanson Crowell & Moring, LLP Washington, DC knathanson@crowell.com

14

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

15

(415) 454-8868

SAN RAFAEL  SAN DIEGO  DENVER FORT  BRAGG

Navigating Jurisdictional Determinations Under the Clean Water Act: Impact of U.S. Army Corps of Engineers v. Hawkes

Practical aspects of wetland determinations under Corps procedures

Michael Josselyn, PhD, PWS

(415) 454-8868

SAN RAFAEL  SAN DIEGO  FORT BRAGG  DENVER  EMERYVILLE

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

16

Delineation Procedures

• Wetland Delineation Guidance

– 1987 Corps Manual – Regional Supplements – Manuals to Ordinary High Water Mark

• Most delineations prepared by applicant and submitted

to Corps for verification

– Exception in Enforcement Cases

• Two types of verification

– Preliminary Jurisdictional Determination – Approved Jurisdictional Determination

• Appeal process

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

17

Wetland Delineation Guidance

To many people, wetland determinations under CWA are a mystery

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

18

Section 10 and 404 boundaries

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

19

Wetland Definition

Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Generally referred to as the three parameter approach:

• 1. Wetland Hydrology: Continuous saturation or inundation

for 14 days during growing season

• 2. Hydric Soils:

Soil appearance meets certain indicators typical of wetland conditions

• 3. Hydrophytes:

Dominance by plants categorized by Corps as having wetland affinity

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

20

Non-wetland waters

The lateral limits of jurisdiction over non-tidal waters bodies extends to the ordinary high water mark (OHWM) and for tidal water bodies to the High Tide Line (HTL) Ordinary High Water Mark --- a line on the shore established by the fluctuations

• f water and indicated by physical characteristics such as a clear, natural line

impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. High Tide Line --- the line of intersection of the land with the water's surface at the maximum height reached by a rising tide.

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

21

Typical Delineation Map

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

22

SWANCC and Rapanos

• SWANCC

– Isolated wetlands may be

• utside CWA jurisdiction

– Vernal pools, potholes, and other features that lack a hydrologic connection

• Rapanos

– Intermittent and ephemeral tributaries may be outside CWA jurisdiction – Significant Nexus test required for such tributaries and adjacent wetlands

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

23

EPA guides Corps

• In 2007, joint document
• n Approved Jurisdictional

Determinations (AJD)

– Introduces terms to define flow – Establishes bases for significant nexus – Eliminates certain features from CWA

• Establishes procedures by

which AJDs are reviewed by the EPA

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

24

Problems with Procedure

• Significant confusion over terminology and procedures

– Corps staff training insufficient – Disagreement on how to determine significant nexus – EPA review overturned many Corps determinations

• Significant time delays

– More extensive documentation required – EPA review time lengthy

• State agencies assumed

jurisdiction over exempted areas

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

25

Corps issues RGL 08-02

• Preliminary Jurisdictional Determinations

– Written indications that there may be “waters of the US” on the property – Makes an “effective presumption” of jurisdiction over all wetlands and waters – Can be used to apply for and receive a Corps permit – Cannot be used to determine there are no “waters of the US” on a project site – Has no specific time limit – Is not appealable – Applicant can request an Approved Jurisdictional Determination at any time in the process

• Essentially expedites process; but is not a final

determination

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

26

Approved JDs

• Follows same guidance for determining boundaries as in

a PJD

• Determine if the feature is excluded under Corps

regulations

• Must also establish whether a feature is hydrologically

isolated (e.g. SWANCC) or connected to navigable water

• Significant nexus determination for

– Non-navigable tributaries that are not relatively permanent – Wetlands adjacent to the above – Wetlands that do not abut, but flow to the above tributary

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

27

Appeals Process

• If an applicant disagrees with Corps Approved JD

– Appeal process can be invoked – Appeal heard by Division office at Corps of Engineers

• Generally based on the administrative record
• Appeals officer conducts site inspection, interviews both

applicant and Corps staff

• Appeals officer prepares a determination

– No merit – Merit and reaches alternative decision – Merit and remands to the District

• Most appeals fail

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

28

Process towards court is slow

Applicant

• Applicant prepared delineation report
• All features mapped

Corps

• Corps verification
• Issues PJD
• Not appealable

Permit

• Application based on PJD
• Mitigation based on PJD

Applicant

• Applicant prepared delineation report
• Present basis for any non-federal wetlands

Corps

• Corps verification
• Determination of isolated or features lacking

significant nexus

EPA

• Review at Regional EPA for significant nexus
• Review at HQ for isolated wetlands
• EPA may take the matter as a “special case”

Corps

• Issues final Approved Jurisdictional Determination for

five years

Applicant

• May appeal AJD to Division office

Corps

• Appeal determination based on administrative record
• No merit ends administrative review
• If merit, may remand to the District

Applicant

• Accepts determination and proceeds to permit OR
• Requests judicial review under Hawkes

PJD process AJD process

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

29

In practice

• Most Districts opt to issue PJDs

– Easier to fill out PJD form – Reduces stress on Corps staff – Expedites the review process

• Appeals are generally unsuccessful
• Time delays are significant to go through the entire

process

• Applicants must also address state and local regulatory

requirements that may reduce potential advantage of smaller federal jurisdiction

• Consider PJD/AJD mixture for phased project

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868

30

Michael Josselyn, Principal josselyn@wra-ca.com

30

U.S. ARMY CORPS OF ENGINEERS V. HAWKES: IMPLICATIONS FOR SECTION 404 AND BEYOND

Chris Carr September 29, 2016

• Wither the MOA?
• What happens to the finality/reviewability of JDs if the Corps scraps the MOA?
• What happens to the CWA if the Corps scraps the MOA?
• Kennedy’s concurrence
• WOTUS Rule/Case
• Government Enforcement
• Citizen Suits
• Legislation

404 After Hawkes

32

33

• Two parts following Bennett v. Spear (1997):
• Action is “final”
• “mark[s] the consummation of agency’s decisionmaking process” on the issue
• r question; “it must not be of a merely tentative or interlocutory nature”;

ruling/determination is “definitive” for “all practical purposes”

• JD features probative of “final” action:
• “issued after extensive factfinding”;
• “remains valid for a period of five years”;
• potential to be revisited/revised in light of new information does not preclude

characterization as final agency action.

• Action is “one by which rights or obligations have been determined, or from which

legal consequences will flow”; gives rise to “direct and appreciable legal consequences”

• “Negative” JD features constituting “legal consequences”:

Hawkes Test for “Final Agency Action”

34

• “generally bind[s] the Corps for five years”;
• per MOA, creates a “five-year safe harbor from” enforcement by federal

government (citizen suit still available).

• “Affirmative” JD features constituting “legal consequences”:
• “the denial of the safe harbor that negative JDs afford.”
• “Warning” of need for permit or risk of “significant criminal and civil penalties” a

“legal consequence”? Or a “practical consequence”?

Hawkes Test for “Final Agency Action”

35

• Even if an agency action is final, judicial review is precluded (APA

section 704) unless there are no “adequate alternatives” to it.

• The Hawkes Court rejected both “alternatives” proffered by the

Corps, finding “[n]either alternative is adequate”:

• “discharge fill material without a permit, risking an EPA enforcement action

during which they can argue that no permit was required”

• “apply for a permit and seek judicial review if dissatisfied with the results”
• Sackett (2012) figured prominently in discussion:
• Party does not have to wait for and risk “serious criminal and civil penalties” from

an enforcement proceeding before challenging final agency action.

• Permit process does not alter the finality of the JD or add anything to the JD
• Clean Water Act itself does not suggest JDs have to be reviewed at the end of the

permitting process

• APA’s presumption of reviewability
• That there would be no agency action to review absent issuance of JD is irrelevant

Alternatives to Judicial Review?

36

• Post Hawke decisions
• Pending litigation
• Beyond individual landowners?
• Is the jig up for agency “leverage”?

Other Environmental Laws

37

Chris Carr Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105 415-268-7246 ccarr@mofo.com

Contact Info