Published on January 3, 2008
The Rapanos Decision: The Rapanos Decision June 28, 2006 Wetland Jurisdiction Rapanos and Its Likely Effects: Wetland Jurisdiction Rapanos and Its Likely Effects Stark Ackerman, Chair Black|Helterline Real Estate, Land Use, and Construction Group What Rapanos Says: What Rapanos Says Erin Donald The Clean Water Act: The Clean Water Act 33 USC 1251 et seq. (1972) Purpose: To restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Definitions: Definitions (e) The term "ordinary high water mark" means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as 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. 33 CFR 328.3 (e) Definitions: Definitions (b) The term "wetlands" means 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. 33 CFR 328.3 (b) Definitions: Definitions (c) The term "adjacent" means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are "adjacent wetlands." 33 CFR 328.3 (c) United States v. Riverside Bayview Homes, Inc., (1985): United States v. Riverside Bayview Homes, Inc., (1985) Held: The Corps’ definition of waters as including wetlands adjacent to navigable waters, even if not inundated or frequently flooded by the navigable water, was reasonable under the statutory authority. Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC)(2001): Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) (2001) Non-navigable, isolated, intrastate waters that do not actually abut on a navigable waterway are not included in waters of the United States. Slide11: Rapanos v. United States Carabell v. Army Corps of Engineers The Plurality: The Plurality Relatively permanent flow and continuous surface connections. Remand. Justice Kennedy’s Concurrence: Justice Kennedy’s Concurrence Significant nexus. Remand. Justice Roberts’ Concurrence: Justice Roberts’ Concurrence Too bad no majority opinion. Now courts and regulated entities must proceed on case by case basis. The Corps could have avoided by rewriting the regulations. Justice Stevens’ Dissent: Justice Stevens’ Dissent The Corps’ broad interpretation of its jurisdiction is a reasonable interpretation of the statute. Justice Breyer’s Dissent: Justice Breyer’s Dissent Dear Corps, Please write new clean water act regulations…and fast! Love, Justice Breyer Federal/State Regulation: Federal/State Regulation Steven Schell History Federal v. Oregon’s Fill and Removal Homebuilders A little Oregon History: A little Oregon History 1859 – bed and banks 1967 – removal 1971 – fill 1989 – wetlands Assumption Waters of this State(not the U.S.): Waters of this State (not the U.S.) Means natural waterways including all tidal and non-tidal bays, intermittent streams, constantly flowing streams, lakes, wetlands and other bodies of water in this state, navigable and non-navigable, including that portion of the Pacific Ocean which is in the boundaries of this state. "Waters of this state" does not include the ocean shore, as defined in ORS 390.605, with the exception of those areas where removal or fill activities are regulated under a state-assumed permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution Control Act, as amended. ORS 196.800 (15) Wetlands Definition: Wetlands Definition "Wetlands" means 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. ORS 196.800 (17) Intermittent stream: Intermittent stream means any stream which flows during a portion of every year and which provides spawning, rearing or food-producing areas for food and game fish. ORS 196.800 (8) Ephemeral streams (SMA):: Ephemeral streams (SMA): streams that contain flowing water only during, and for a short duration after, precipitation events. OAR 350-081-0020 (58) Exempt From Removal-Fill Authorization\Exempt Maintenance or Reconstruction of Certain Structures. : Maintenance, or reconstruction of certain structures within waters of the state such as dikes, dams, levees, groins, riprap, tidegates, drainage ditches, irrigation ditches, irrigation structures and tile drain systems are exempt from the requirements of these rules, provided that: (a) The structure was serviceable within the past five (5) years; and (b) Such maintenance or reconstruction would not significantly adversely affect wetlands or other waters of this state to a greater extent than the wetlands or waters of this state were affected as a result of the original construction of those structures; consistent with the water right certificate and ORS 540.510(5). OAR 141-085-0020(8) Exempt From Removal-Fill Authorization\Exempt Maintenance or Reconstruction of Certain Structures. Exempt Maintenance, Repair, Replacement or Removal of Culverts—If:: Exempt Maintenance, Repair, Replacement or Removal of Culverts—If: (a) The removal fill is limited to the extent of the existing road prism (as defined in OAR 141-085-0010) and may, consistent with OAR 141-085- 0010(124), expand the original footprint of the structure by up to 20 percent if fish passage design requires removal or fill outside the road prism in order to successfully pass fish, the removal/fill volume and area of impact is limited to the minimum necessary to restore the function of the structure and provide fish passage but not more than 20 percent of the original footprint; (b) The culvert was serviceable within the past five (5) years; (c) The removal-fill does not significantly adversely affect wetlands or other waters of this state to a greater extent than the wetlands or waters of this state were affected as a result of the original construction and placement of the culvert. (d) The culvert is replaced in a manner that assures fish passage and complies with the design guidelines of the Oregon Department of Fish and Wildlife (e.g., counter sinking the new culvert to accommodate the natural bank full width and replicating the stream's natural streambed configuration). OAR 141-085-0020(8) State Programmatic General Permit: State Programmatic General Permit Categories Streambank Stabilization Activities Water Control Structures Utility Lines Road Construction, Repairs, and Improvements Site Preparation for Construction or Repair of Buildings and Related Features, such as Driveways, Parking Areas, and Walkways Stream and Wetland Restoration Minor Fill and/or Removal Piling Installation and/or Removal State Programmatic General Permit: State Programmatic General Permit Limitations Discharge of the dredged or fill material in wetlands shall not exceed ½ acre. Discharges and/or excavation in waters of the U.S. other than wetlands shall not exceed 1,000 cubic yards below the ordinary water line. Specific Water quality and federal Endangered Species Act requirements must be met. Regional General Permit: Regional General Permit Fill is authorized for 12 activities Maintenance Surveys Utility Line activities Bank stabilization Linear transporation projects Coast Guard approved bridges Minor discharges ( limit: 25 Cu Yds) RGP Continued:: RGP Continued: Structural discharges (e.g., pilings) Restoration activities Single Family Housing (only once per parcel) Developments (if <1/2 acre, 300’ or less of linear stream bed affected ____________ Watch out for prior notice. Effect on Gravel Operations: Effect on Gravel Operations Paul Hribernick How Rapanos will not help: How Rapanos will not help The Corps/NOAA/USFWS regulation based on salmonids and endangered species remain in place. This is not an ESA case and there are separate bases for jurisdiction under the ESA. In-stream mining, such as bar scalping and dredging will remain primarily ESA (non-wetlands) issues. Rapanos will help: Rapanos will help The Corps’ impact on isolated wetlands. Remember, however, that DSL also has wetland jurisdiction. Wetland considerations for redevelopment of abandoned pits. But again, remember that DSL is not directly affected by Rapanos. How Rapanos may help: How Rapanos may help The case may help reverse the Corps creeping jurisdiction over the 100 year floodplain. Plurality rejects the “100 year floodplain = the river.” The Corps may be forced to rule make (Roberts and Breyer essentially demand new rule making). Rulemaking may provide an opportunity to participate in to “adjusting” the Corps jurisdictional thinking about the 100 year floodplain. Effect on Farming : Effect on Farming Clarence Greenwood Rapanos/Carabell: Rapanos/Carabell Deals with the Corps and EPA jurisdiction over waters of the United States, especially wetlands. The case does not deal with: The Endangered Species Act The Rivers and Harbors Act Oregon’s Removal/Fill Law Neither Rapanos nor Carabell involved farmers or ranchers. The cases did not involve EFU zoned lands. Rapanos and Carabell decisions will have a substantial impact on agriculture and EFU zoned lands. Borden Ranch: Borden Ranch This was a Ninth Circuit decision involving ranch land in California. The owner wanted to convert part of the land from ranching to fruit orchards and vineyards. To do so, they had to deep-rip the land to allow the roots to penetrate a clay pan. The Corps issued a guidance letter in 1996 (without following the Administrative Procedures Act Rules) clarifying deep ripping as a regulated activity. The Corps and EPA issued a cease and desist order. When owner challenged the authority (i.e., jurisdiction of the agencies) the agencies imposed fines of $1.5 million. Ninth Circuit Ruled: Ninth Circuit Ruled Even though the Corps’ 1996 guidance letter was issued without compliance with the Administrative Procedures Act, the court would not look at or deal with that issue. Even though deep-ripping merely lifted the soil, before it fell back into the same place, it was a regulated activity (i.e., deemed to be fill) subject to the Corps and EPA jurisdiction. The fact that the land was not connected to a navigable water by surface flows was not necessary. It was not necessary according to the Ninth Circuit because ripping the clay pan changed the ground water and this water was hydrologically connected to waters of the United States. The Ninth Circuit held the exemptions in 33 U.S.C. § 1344(f) were inapplicable due to the Recapture Clause (33 U.S.C. § 1344(f)(2)): (f) Non-prohibited discharge of dredged or fill material. Ninth Circuit Ruled: Ninth Circuit Ruled (1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material— (A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices; (B) for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures; (C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches; Ninth Circuit Ruled: Ninth Circuit Ruled (D) for the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters; (E) for the purpose of construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized; (F) resulting from any activity with respect to which a State has an approved program under section 1288(b)(4) of this title which meets the requirements of subparagraphs (B) and (C) of such section, is not prohibited by or otherwise subject to regulation under this section or section 1311(a) or 1342 of this title (except for effluent standards or prohibitions under section 1317 of this title). Ninth Circuit Ruled: Ninth Circuit Ruled (2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. Borden Ranch was appealed to the U.S. Supreme Court. The Supreme Court split 4/4 with Justice Kennedy not participating because he knew the owner. Deaton (Road Ditch Case/Sidecasting of Material as Fill): Deaton (Road Ditch Case/Sidecasting of Material as Fill) This is a non-farm case. It involved the owner of 12 acres of land in Maryland. The property on one side ended at a county road (Morris Leonard Road). The road had a ditch that ran along the Deaton’s property and the pavement. At a point the road ditch drained through a culvert into another ditch which flowed into Beaverdam Creek, a natural watercourse. This ditch flowed into Wicomico River, which is navigable. To deal with drainage issues on their property, the Deatons dug a ditch 1,100 feet long. This ditch drained into the roadside ditch. The Corps and EPA asserted jurisdiction under the Clean Water Act. Deaton (Road Ditch Case/Sidecasting of Material as Fill): Deaton (Road Ditch Case/Sidecasting of Material as Fill) Litigation: The U.S. District Court initially held that the sidecasting of dirt that occurred was not regulated (i.e., was not “filling of a wetland”), but the Fourth Circuit reversed. The Fourth Circuit held that the Corps Tributaries Regulation (33 C.F.R. § 328.3(a)(5)) was valid and that this regulation stretched the authority of the Corps to the Deaton’s property. Accordingly, the Fourth Circuit held the sidecasting was fill placed in wetlands that the Corps and EPA had authority over. Deaton (Road Ditch Case/Sidecasting of Material as Fill): Deaton (Road Ditch Case/Sidecasting of Material as Fill) After the U.S. Supreme Court announced its decision in SWANCC, the Deatons asked the Fourth Circuit to reconsider its holding. Although the Fourth Circuit granted rehearing, it affirmed its prior decision. Many fields abut a county road. They all have a ditch which usually drains through a culvert and eventually to a stream and a river. Under the Deaton decision, cleaning the ditch and sidecasting the material or creating a contour or drainage feature or ditch that resulted in any sidecasting of material would be subject to the Clean Water Act. This was the status of affairs under the Clean Water Act prior to Rapanos. RAPANOS EFFECT: RAPANOS EFFECT Borden Ranch: Borden Ranch Rapanos does not mention Borden Ranch by name. However, we believe the Rapanos decision overruled Borden Ranch. The reason is at least five members of the court rejected a “hydrologic connection” as a basis for Clean Water Act jurisdiction. Instead, there must be an open-water connection or significant nexus. The separate opinion of Justice Kennedy also may have breathed new life into the 1344(f) exemptions. His opinion states 1344(f) “categorically exempt[s] certain forms of discharge of dredged or fill material” from regulation under the Clean Water Act. Our view is Borden Ranch is no longer good law. Deaton: Deaton Justice Scalia’s Rapanos opinion mentions this case by name. Whether the case is overruled depends on whether the Corps Tributaries Regulation survives on remand. Clearly, Justice Scalia’s approach, which has the support of four Justices, would have invalidated the Corps’ regulation. Whether Justice Kennedy’s significant nexus test will result in the same position is the question that will be resolved on remand. Our view is that Deaton should not (and probably will not) be sustained. The fact that a field abuts a road with a ditch is simply too remote to allow the field to be declared a wetland. Oregon’s Removal/Fill Law: Oregon’s Removal/Fill Law This law was amended in 1989 to extend DSL’s authority to wetlands. ORS 196.805(4) expressly ties delineation in Oregon to the Corps’ 1987 manual or subsequent federal manual. Query: If the Corps’ manual has to be revised due to Rapanos, will it directly impact Oregon’s delineation of wetlands on EFU zoned land? Oregon’s Removal/Fill Law: Oregon’s Removal/Fill Law The exemptions in Oregon’s removal/fill law are at ORS 196.905. These exemptions are patterned on the federal exemptions. In 2001, Senate Bill 172 was pushed through the Oregon Legislature by DSL. However, this bill did not and will not become law unless passed a second time. This bill is a bad law. The reason is it disconnects Oregon law from the federal Clean Water Act exemptions. If this bill becomes law, any benefit to Oregonians from the Rapanos decision will be lost. Point Source; Endangered Species Act: Point Source; Endangered Species Act Rapanos does not limit point source rules. Owners should be careful in handling pollutants under the point source rules. For example, Headwaters Inc. v. Talent Irrigation District involving placing weed killing chemical in irrigation canal is probably still good law. Query: Are natural materials like rip rap, gravel or sand a pollutant? Under Justice Scalia’s opinion they probably are a special class of materials. They are probably a pollutant when placed as fill in navigable waters and adjacent wetlands, but not a pollutant if placed as fill in non-navigable waters and adjacent wetlands. Endangered Species Act is not affected. Thus, liability under this statute remains. Still the procedures under the Endangered Species Act are different than under the Clean Water Act. Because of this, the federal agencies much preferred the Clean Water Act as the basis for their authority. Legislative Considerations: Legislative Considerations Rich Angstrom Chief Justice Roberts offers the most telling observation of the decision in his concurring opinion:: Chief Justice Roberts offers the most telling observation of the decision in his concurring opinion: “It is unfortunate that no opinion commands a majority of the court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower Courts and the regulated entities will now have to feel their way on a case-by-case basis.” Two Opposing Tests that Determine Jurisdiction: Two Opposing Tests that Determine Jurisdiction Plurality Bright Line Test from Scalia: Waters of the United States include water bodies that have a relatively permanent flow and would have a continuous surface connection to another regulated water of the United States. Concurrence by Justice Kennedy’s Significant Nexus test: Waters of the United State include water bodies that have a significant ecological relationship between traditionally navigable waters of the United States and the wetlands, and also have a hydrologic connection between the wetland and the navigable water at issue. Oregon Law: Oregon Law In some cases, Oregon law is more expansive than the federal law. In particular, Oregon law regulates removal activity that the federal law does not. Oregon law may not include all the agricultural exemptions the federal law includes. Oregon law regulates wetlands, intermittent streams, channels and ditches that the Federal Government may no longer regulate after this court decision. Legislative Strategy : Legislative Strategy Update on leadership changes at DSL and how it will affect the agency’s ability to respond to this case and possible legislative reaction. Legislature make-up and its challenges. 2007 Legislation Agenda. Specific Targets for removal activity, intermittent waters, ditches, isolated wetlands. General Target of following federal law. Thoughts on changing Administrative Rules. 404 Assumption Options – (SB 172) Four Year Strategy. Summary : Summary The Rapanos case and decision does not set clear precedent. Where the overall decision is helpful in restricting the applicability of the Clean Water Act, a successful Oregon strategy designed to follow federal law would be politically difficult short term without a broader strategy including political support, acknowledgment of Oregon’s environmental climate and a vehicle like the 404 assumption bill. Slide58: Stark Ackerman Erin Donald Steve Schell Paul Hribernick Clarence Greenwood Rich Angstrom Thank you for attending Special thanks to Naomi Adams for her help in putting this presentation together.