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

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1 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 THURSDAY, SEPTEMBER 29, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: 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. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 U.S. Army Corps of Engineers v. Hawkes Co. Overview, Connections, and Signals Kirsten L. Nathanson September 29, 2016

6 Overview Legal framework Facts of the case The Supreme Court decision Connections to Sackett to WOTUS Signals from the Court 6

7 Legal Framework 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 7

8 Facts of the Case 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 8

9 Supreme Court Decision 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 9

10 Supreme Court Decision 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 10

11 Supreme Court Decision 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 11

12 Connections Connections to WOTUS JDs are at the core of WOTUS Connections to Sackett v. EPA Pre-enforcement review of agency compliance order 12

13 Signals 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 13

14 Kirsten Nathanson Crowell & Moring, LLP Washington, DC 14

Hawkes Practical aspects of wetland determinations under Corps procedures Michael Josselyn, PhD,

15 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 SAN RAFAEL SAN DIEGO DENVER FORT BRAGG SAN RAFAEL SAN DIEGO FORT BRAGG DENVER EMERYVILLE (415) SAN RAFAEL SAN DIEGO DENVER FORT BRAGG EMERYVILLE (415)

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

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 (415)

17 Wetland Delineation Guidance To many people, wetland determinations under CWA are a mystery SAN RAFAEL SAN DIEGO DENVER FORT BRAGG EMERYVILLE (415)

18 Section 10 and 404 boundaries SAN RAFAEL SAN DIEGO DENVER FORT BRAGG EMERYVILLE (415)

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 (415)

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 of 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 (415)

21 Typical Delineation Map SAN RAFAEL SAN DIEGO DENVER FORT BRAGG EMERYVILLE (415)

SWANCC and Rapanos SWANCC Isolated wetlands may be outside CWA jurisdiction Vernal pools, potholes, and other features that lack a hydrologic connection Rapanos Intermittent and ephemeral

22 SWANCC and Rapanos SWANCC Isolated wetlands may be outside 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 (415)

23 EPA guides Corps In 2007, joint document on 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 (415)

determinations Significant time delays More extensive documentation required EPA review time lengthy State

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 (415)

25 Corps issues RGL 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 (415)

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 (415)

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 (415)

28 Process towards court is slow PJD process AJD process Applicant Applicant prepared delineation report All features mapped Applicant Applicant prepared delineation report Present basis for any non-federal wetlands Corps Corps verification Issues PJD Not appealable Corps Corps verification Determination of isolated or features lacking significant nexus Permit Application based on PJD Mitigation based on PJD 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 SAN RAFAEL SAN DIEGO DENVER FORT BRAGG EMERYVILLE (415)

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 (415)

Michael Josselyn, Principal josselyn@wra-ca.

30 Michael Josselyn, Principal SAN RAFAEL SAN DIEGO DENVER FORT BRAGG EMERYVILLE (415)

31 U.S. ARMY CORPS OF ENGINEERS V. HAWKES: IMPLICATIONS FOR SECTION 404 AND BEYOND Chris Carr September 29, 2016

32 404 After Hawkes 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 32

33 Hawkes Test for Final Agency Action Two parts following Bennett v. Spear (1997): Action is final mark[s] the consummation of agency s decisionmaking process on the issue or 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 : 33

34 Hawkes Test for Final Agency Action 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? 34

35 Alternatives to Judicial Review? 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 35

36 Other Environmental Laws Post Hawke decisions Pending litigation Beyond individual landowners? Is the jig up for agency leverage? 36

37 Contact Info Chris Carr Morrison & Foerster LLP 425 Market Street San Francisco, CA

What You Need to Know About the Supreme Court's Clean Water Act Decision in Hawkes

What You Need to Know About the Supreme Court's Clean Water Act Decision in Hawkes Publication 06/14/2016 Co-Authored by Chelsea Davis Ashley Peck Partner 801.799.5913 Salt Lake City aapeck@hollandhart.com