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·	EPA, Army Corps Extend Public Comment Period for Joint Rapanos Guidance (added 11/28/07)
·	Carabell/Rapanos Guidance Released June 5, 2007
·	Applying Significant Nexis to Clean Water Act Jurisdiction
·	Rapanos/Carabell Supreme Court Decision
·	CWA Jurisdiction Court Cases Post Rapanos (added 11/15/07)
·	Media Coverage (updated 1/16/09)
·	Press Releases
·	Briefs
·	Friends of the Court Briefs from States and State Organizations (on behalf of the United States)
·	Friend of the Court Brief (on behalf of Carabell/Rapanos) Which Included Utah and Alaska
·	Additional Information on Carabell/Rapanos
·	Maps and Pictures of Carabell and Rapanos Sites
·	CWA Jurisdiction Issues and the Supreme Court
·	Administration Position on Clean Water Act Jurisdiction
·	Supreme Court Wetland Cases Affect All Waters and Water Programs Under the Clean Water Act
·	Importance of Headwater Streams and Wetlands (including intermittent, ephemeral, and "isolated" waters)
·	North Carolina's Analysis of the Importance of Headwater Streams and Wetlands
·	Waters of the United States
·	Other Sites of Interest (updated 12/2/08)

Applying Significant Nexis to Clean Water Act Jurisdiction

Draft Decision Paper Available for Review and Comment: (Updated 3/5/07)

ASWM has posted a draft discussion paper that provides a detailed description of the Carabell/Rapanos decision and other relevant court cases. It includes recommendations on how the agencies should proceed as they pursue guidance and/or rulemaking. It is posted as a draft document and comments and ideas are welcome through the end of December. The full document: "Significant Nexus" and Clean Water Act Jurisdiction The summary and recommendation section: Recommended Actions to Clarify Clean Water Act Jurisdiction Following Issuance of the Consolidated Decision, Rapanos v. U.S. 126 S. Ct. 2208 (S.Ct. 2006)

Rapanos/Carabell Supreme Court Decision

Carabell/Rapanos Decision and Dissenting Opinions

ASWM Analysis of Supreme Court Decision in Carabell/Rapanos (added 8-21-06)

Carabell/Rapanos: Transcript of Oral Arguments Before the Supreme Court

CWA Jurisdiction Court Cases Post Rapanos (added 11/15/07)

11th Circuit Court Decides a Perennial Stream is Not Subject to Clean Water Act for a Section 402 Discharge By Jon Kusler, Esq., Ph.D., Association of State Wetland Managers, Inc. On October 24, 2007 the 11th Circuit Court of appeals (Alabama, Georgia, and Florida) overturned the lower, district court Clean Water Act convictions of several individuals for dumping waste water into a stream because the U.S. government had not sufficiently demonstrated that the stream had a "significant nexus" to navigable waters and was, therefore, a "navigable water" of the U.S. and subject to CWA jurisdiction. Rapanos had not been decided when the case was considered by the lower district court so there was no need to explicitly show "significant nexus" in the trial at this level. Just how much evidence government will need to introduce to establish a "significant nexus" in a retrial remains to be seen. It is possible that government will have little difficulty in establishing a "significant nexus" once the actual words "significant nexus" are used in the retrial jury instructions and jury deliberations. Nevertheless, the language of the court in rejecting EPA's expert testimony presented at the district court level as insufficient suggests that this court and perhaps other courts will demand more evidence of hydrologic, biological, or other sorts of connections than government agencies are ordinarily able to supply given limited budgets and staffing. [read more] PDF

Memorandum Opinion: Judge Propst Post Appeal I write this opinion to explain why I will direct the Clerk to reassign this case to another judge for trial. At least one of the reasons is that I am so perplexed by the way the law applicable to this case has developed that it would be inappropriate for me to try it again. [read more] [PDF]

Five Post Rapanos Court Cases Uphold CWA Jurisdiction by Jon Kusler, Esq. August and September were good months for wetlands and waters in the federal courts. The judges in five federal decisions upheld Clean Water Act jurisdiction in contexts in which jurisdiction had been questionable in light of the U.S. Supreme Court Rapanos and SWANCC decisions. [read more] [PDF]

Digest of Significant Decisions Addressing Rapanos [PDF]

National Wildlife Federation Summary of Post Rapanos and Post SWANCC Court Decisions [PDF]

Media Coverage

Revisions to the Clean Water Act Regulatory Definition of ``Discharge of Dredged Material''; Final Rule

EPA News Release – December 30, 2008 The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) (together, the ``Agencies'') are promulgating a final rule to amend a Clean Water Act (CWA) section 404 regulation that defines the term ``discharge of dredged material.'' This action conforms the Corps' and EPA's regulations to a court order invalidating the January 17, 2001, amendments to the regulatory definition (referred to as the ``Tulloch II'' rule). This final rule responds to the court decision by deleting language from the regulation that was invalidated. For a link to the Federal Register document, dated December 30, 2008, go to: http://www.epa.gov/fedrgstr/EPA-WATER/2008/December/Day-30/w30984.htm

John Rapanos agrees to pay for Clean Water Act violations

(Washington, D.C. - Dec. 29, 2008) John A. Rapanos and related defendants have agreed to pay a civil penalty and recreate approximately 100 acres of wetlands and buffer areas to resolve violations of the Clean Water Act at three sites in Midland and Bay counties, Michigan, the Justice Department and U.S. Environmental Protection Agency announced today. Rapanos has agreed to pay a $150,000 civil penalty and will spend an estimated $750,000 to mitigate for 54 acres of wetlands that were filled without authorization under the Clean Water Act. Rapanos has also agreed to preserve an additional 134 acres of wetlands that were unaffected by the unauthorized activity. Under the agreement, the preservation of these areas will be enforced via a conservation easement held by the State of Michigan. "After litigating this case for a number of years, we are pleased to reach a settlement that so strongly benefits the environment and serves the public interest," said Ronald J. Tenpas, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division. "This longstanding case demonstrates that EPA continues to vigorously pursue violations of the Clean Water Act that adversely affect wetlands," said EPA Regional Administrator Lynn Buhl. "The settlement will benefit the environment in Bay County by preserving a substantial amount of wetlands that play a vital role in water quality, flood control and fisheries." The original enforcement action was filed against Rapanos in 1994 and the case drew national attention after the District Court ruling was appealed to the U.S. Supreme Court and subsequently sent back to the U.S. District Court for further proceedings. Rapanos challenged EPA's findings that the filled wetlands were under federal jurisdiction under the Clean Water Act. The litigation determined that Rapanos did fill wetlands under federal jurisdiction. In the late 1980s and early 1990s, Rapanos attempted to level three different parcels of land by uprooting vegetation and filling low spots with sand and dirt. He also dug an extensive network of ditches to dry out the sites, which resulted in excavated dirt being sidecast into wetlands. The parcels of land were intended to be developed for a shopping mall and residential homes. There is a parallel criminal matter that is still pending and is not affected by the settlement under the agreement. The proposed consent decree, lodged in the U.S. District Court in Detroit, is subject to a 30-day comment period and final court approval. A copy of the proposed consent decree is available on the Justice Department Web site at www.usdoj.gov/enrd/Consent_Decrees.html.

Conservation Coalition Releases 2009 Policy Agenda

WASHINGTON – The Theodore Roosevelt Conservation Partnership (TRCP) today released its 2009 Conservation Policy Agenda, which represents the consensus priorities of its wide-ranging partners. The agenda was developed by a broad coalition that includes national hunting, fishing and conservation organizations, labor unions and grassroots sportsmen. The TRCP will focus sustained and coordinated efforts on these issues in the coming year. “By bringing together the diverse voices of its partners, all of whom care deeply about our country’s fish and wildlife resources, the TRCP has been able to shape federal policy for the benefit of future generations of American sportsmen,” said TRCP President and CEO George Cooper. “As a new Congress and administration comes to Washington, this year will be full of opportunities to advance the cause of conservation. We plan to pursue them with the vigor for which our namesake was known.” For full article, click here.

Revised Guidance addressing Clean Water Act jurisdiction following Rapanos decision

EPA News Release – December 3, 2008 On June 5, 2007, the Environmental Protection Agency (EPA) and the Department of the Army issued guidance clarifying Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States. The agencies received 66,047 public comments on the Rapanos Guidance (65,765 form letters, 282 non-form letters), from States, environmental and conservation organizations, regulated entities, industry associations, and the general public. EPA and the Department of the Army jointly reviewed the comments and released a revised version of the guidance on December 2, 2008 in consideration of those comments and consistent with the agencies' experience implementing the guidance. The revised guidance and a set of questions and answers on the guidance are posted at: http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html  Specifically three documents have been revised: For the revised Q&A, go to: http://www.epa.gov/owow/wetlands/pdf/Rapanos_%20Guidance_QA%20120208.pdf For the revised guidance, go to: http://www.epa.gov/owow/wetlands/pdf/CWA_Jurisdiction_Following_Rapanos120208.pdf For the revised comments, go to: http://www.epa.gov/owow/wetlands/pdf/Comments_Response_120208.pdf For a related press release, Revised EPA “Guidance” Amplifies Need for Clean Water Restoration Act by National Wildlife Federation, Contact: Aileo Weinmann – December 4, 2008 “The revised Guidance clearly points to the need for Congress to clean up the legal mess and restore full protections to our Nation’s waters.” For press release, go to: http://ww.pennnet.com/display_article/347036/41/ARTCL/none/none/1/Revised-EPA-

Supreme Court declines to grant review of Rapanos related case

By Jim Murphy (National Wildlife Federation) - Michigan Wetland Action Coalition News – October 10, 2008 --On October 6, the Supreme Court denied "certiorari" in Lucas v. US, a case involving an appeal from the Federal Court of Appeals for the Fifth Circuit where that court found that wetlands in Mississippi which had been polluted by a developer due to the unpermitted placement of fill and septic waste into the wetlands were protected under the Clean Water Act because the wetlands met the tests put forth in all three major opinions in Rapanos.   Denying certiorari means the Court declined to accept the appeal, leaving the lower court decision to stand. It is worth noting that the Supreme Court has been asked to grant review to another Rapanos related case, the McWane case.  In that case a government verdict was overturned because the Federal Court of Appeals for the Eleventh Circuit found the government failed to prove Avondale Creek in Alabama, which was being polluted by dumping of industrial waste by a manufacturer, had a "significant nexus" to the navigable downstream river into which the creek eventually flowed.  Avondale Creek is a perennially flowing stream.  The Eleventh Circuit ruled, however, that the plurality test of "relatively permanent" cannot in any instance be used and that a significant nexus must be demonstrated even for non-navigable perennial streams.  The government is asking the Supreme Court to review and overturn this decision.  A decision on whether the Supreme Court will take this case is pending. The order denying certiorari in the Lucas case is at:   http://www.supremecourtus.gov/orders/courtorders/100608zor.pdf  For a link to Michigan Wetland Action Coalition, visit: http://www.michiganwetlands.org/index.html

U.S. seeks clarity on Rapanos ruling

By Lyle Denniston – Scotus Blog – August 25, 2008 The U.S. government, arguing that the lower courts have fallen into confusion and disagreement over federal power to protect wetlands, has urged the Supreme Court to make clear what it meant in the “highly fractured” ruling two years ago in Rapanos v. U.S. (04-1034) — a significant decision on the scope of the Clean Water Act. The Justice Department filed an appeal Thursday on that issue in U.S. v. McWane, Inc., et al. (docket 08-223). For full blog entry, go to: http://www.scotusblog.com/wp/us-seeks-clarity-on-rapanos-ruling/

Clearer Rules, Cleaner Waters

The New York Times – August 17, 2008 The 1972 Clean Water Act was designed to protect all the waters and wetlands of the United States: large and small, navigable and seasonal. That clear mission has since been muddied by the Supreme Court, exposing thousands of miles of streams and millions of acres of wetlands to pollution and damaging development. For full article, go to: http://www.nytimes.com/2008/08/18/opinion/18mon3.html?_r=2&oref=slogin&oref=slogin

Corps action on Santa Cruz riles congressmen

By Dick Kamp – Nogales International – August 12, 2008 The chairmen of two influential congressional committees are challenging the basis being used by the U.S. Army Corps of Engineers and the Environmental Protection Agency to determine "navigability" of the Santa Cruz and the Los Angeles rivers. 2006 decision - Such a determination has been necessary since the 2006 U.S. Supreme Court decision in United States v. Rapanos which greatly reduced the authority of the Clean Water Act. Failure to get a navigability determination may mean that the Act does not protect all or parts of a stream or any of its tributaries from potential polluters. For full article, go to: http://www.nogalesinternational.com/articles/2008/08/12/news/news6.txt

CA: Boaters Make Successful Descent of L.A. River in 52-mile Los Angeles River Expedition

The River Network Press Release – PRNet – August 1, 2008 A dozen intrepid Angelenos successfully navigated kayaks and canoes down the full length of the 52-mile L.A. River (from headwaters at Canoga Park to estuary in Long Beach) in a three-day expedition, demonstrating that the whole river merits a determination as a “traditionally navigable water” (TNW) — which would entitle the entire watershed to the highest standards of federal protections under the Clean Water Act. On June 4th, 2008, the Army Corps of Engineers ruled that only two stretches of the river (about 4 miles) merited distinction as a traditionally navigable waters, lowering the bar for protection of tributaries feeding into the river, opening the floodgates for development on the region’s fragile ecosystems, threatening local water supplies, undermining the momentum of city and county river revitalization master plans, circumventing public involvement in its decision-making, and setting a precedent that could be followed on other abused and endangered waterways throughout the country. For full press release, go to: http://www.pr-usa.net/index.php?option=com_content&task=view&id=125188&Itemid=30 For more on this story (no jokes), visit: http://www.lalatimes.com/lariver/index.php?PHPSESSID=b2b28d0c72c020b71687343e9d44f881

Corps Issues New Regulatory Guidance Letter on Jurisdictional Determinations (JDs)

The Corps issued a Regulatory Guidance Letter on June 26, 2008 on Clean Water Act jurisdictional determinations. This Regulatory Guidance Letter (RGL) explains the differences between these two types of JDs and provides guidance on when an approved JD is required and when a landowner, permit applicant, or other “affected party” can decline to request and obtain an approved JD and elect to use a preliminary JD instead. For a direct link to this regulatory guidance letter, go to: http://www.usace.army.mil/cw/cecwo/reg/rgls/rgl08-02.pdf

State Takings Legislation Limits Environmental Regulation, Report Says

InsideEPA News – June 13, 2008 A recently released academic report raises broad concerns for state laws requiring compensation to landowners for regulatory actions that restrict the use or otherwise diminishes the value of their property, contending that strict state legislation often has the unintended consequence of limiting local environmental regulation. The Track Record on Takings Legislation: Lessons from Democracy’s Laboratories, charges that states with the most stringent and far-reaching laws limiting so-called regulatory takings -- particularly Florida and Oregon -- have numerous examples where environmental regulatory action was thwarted because of local governments that either cannot or will not pay the large sums of money which regulatory action requires. The study, written by John Echeverria and Thekla Hansen-Young of the Georgetown Environmental Law & Policy Institute, focuses on property rights laws in Florida and Oregon, with an eye toward requirements in Arizona, Louisiana, Mississippi and Texas, as well as a California ballot initiative that passed soon after the report was issued. California voters June 3 approved Proposition 99, a law that prohibits the California and local governments from taking private land for the use of another private owner. The rule, however, still allows eminent domain for reasons of public health and safety, as well as environmental remedy for hazardous land. The results of Florida and Oregon’s approach have a number of lessons for other states, the Georgetown study argues: takings legislation can undermine community protections; the laws benefit special interests; it creates land use conflicts; it provides financial windfalls for land owners; and the laws undermine public participation in land use decisions. For direct link to the report, go to: http://www.law.georgetown.edu/gelpi/TrackRecord.pdf  For related blog discussion, visit: http://lawoftheland.wordpress.com/2008/05/25/georgetown-center-publishes- takings-report-focusing-on-florida-and-oregon/

Save Lake Michigan: CWRA

OpEd by Megan Giles – Chicago Tribune – June 11, 2008 Lake Michigan is Illinois' pride and joy. Not only that, it provides the drinking water and many recreational activities for Illinoisans. Now Lake Michigan is being threatened by developers and polluters that want to dump their toxins into the streams and wetlands that feed Lake Michigan. The Clean Water Act does not protect all of the nation's waters due to recent Bush administration policies. Now 60 percent of Illinois's remaining wetlands are not protected by the act. Many of these streams are what feed Lake Michigan, causing it to be in danger. For full OpEd, go to: http://www.chicagotribune.com/news/opinion/letters/chi-080611lakemich_briefs,0,288941.story

The Environmental Council of States Passes Resolutions on Clean Water Act Jurisdiction and State Assumption of the Section 404 Program On April 16 the Environmental Council of States (Ecos) passed a resolution calling for Congress to act immediately to reestablish Clean Water Act (CWA) jurisdiction to the full scope of waters protected prior to recent Supreme Court decisions, and to work in cooperation with ECOS and other interested organizations to resolve CWA jurisdiction issues. “States that have developed and implemented their own wetland rules both prior to and in response to the SWANCC and Carabell/Rapanos decisions are undermined by the continued confusion at the [f]ederal level,” the resolution states. Another resolution notes that states that develop wetland permit programs using federal EPA wetlands development grants are not eligible for EPA grants to implement their wetland permit programs, and expresses support for congressional action to appropriate adequate funding for states that assume the CWA section 404 permitting program.   The full text of the resolutions can be found at: Clean Water Act Jurisdiction Issues Require Clarification from Congresshttp://www.ecos.org/files/3115_file_Copy_Resolution_08_2.pdf?PHPSESSID=b61bac12d7e1b2c5ebb2fad4cf94611a State Delegation of Clean Water Section 404 Permit Programhttp://www.ecos.org/files/3117_file_Copy_of_Resolution_08_3.pdf?PHPSESSID=b61bac12d7e1b2c5ebb2fad4cf94611a

House and Senate Hearings Held on Clean Water Restoration Act On April 16 the House Transportation and Infrastructure Committee held a hearing on the Clean Water Restoration Act.  The committee received testimony from the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, the U.S. Department of Justice, the U.S. Department of Agriculture's Natural Resources Conservation Service, representatives of State and local governments, environmental, agricultural, and industry interests, legal practitioners, and other stakeholders on the Clean Water Restoration Act of 2007.  More information about the hearing including the live webcast, background paper and testimony is available at: http://transportation.house.gov/hearings/hearingDetail.aspx?NewsID=486 The live webcast and written testimony for the hearing on April 9, 2008 is available at http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID= 116d6ddd-802a-23ad-4f2f-4d329c912bb2

Words crucial to saving wetlands By Geoff Mullins -  the Bismark Tribune - April 6, 2008 Congressional leaders will gather in mid-April for hearings on the future of wetlands in America. Much hinges on their ability to generate momentum toward lasting legal protections for these incomparable resources. We have lost more than half of our country's natural wetlands and continue to lose them at a rate of 80,000 acres per year. What's worse, the fabric of our current wetlands protection laws has been worn threadbare. For full article, go to: http://www.bismarcktribune.com/articles/2008/04/06/news/opinion/letters/152711.txt

Wetlands Delineation and Jurisdictional Determination: Post Rapanos-Carabell May 19 - 23, 2008 - Raleigh and New Bern, NC – NC State University - The 10th anniversary edition of the NC State University wetland delineation course has been extensively revised and updated to reflect the tremendous changes in methods of wetland delineation and jurisdictional determination that have been introduced by the U.S. Army Corps of Engineers (Corps) since the course was last offered in May, 2007. For more information, go to: http://www.ces.ncsu.edu/nreos/forest/feop/wetlands/index.html

MS: Appeals Court Upholds Convictions in Mississippi Wetlands Case The Times-Picayune – January 4, 2008 The 5th U.S. Circuit Court of Appeals has upheld the convictions of a Mississippi coastal developer and two others for mail fraud and violations of the federal Clean Water Act. A federal jury in February 2005 convicted Robert J. Lucas Jr., of Lucedale, chief executive of Big Hill Acres Inc., and the two others of 41 charges, including conspiracy. Lucas; his daughter, Robbie Lucas Wrigley, an Ocean Springs real estate agent; and M.E. Thompson, a professional engineer from D'Iberville, were accused of selling lots in Vancleave in a wetlands area with unworkable septic systems. For full article, go to: http://www.dailyreportonline.com/Editorial/News/singleEdit.asp?individual_SQL=2%2F4%2F2008%4021052 For a related story, visit: http://www.gulflive.com/news/mississippipress/index.ssf?/base/news/1202210129185900.xml and for a direct link to the case, go to: http://www.aswm.org/wbn/06-60289-cr0.pdf

Clean Water Act Hearing Held in Senate December 13, 2007 On Thursday, December 13, 2007 the full committee of Senate Environment and Public Works was held on “The Clean Water Act following the recent Supreme Court decisions in Solid Waster Agency of Northern Cook county and Rapanos-Carabell.” The hearing lasted only a half-hour due to the need of the Senators to participate in a vote on the floor of the Senate. A webcast of the hearing as well as formal statements submitted by Ducks Unlimited, Assoc. of Home Builders, etc. can be found HERE

Corps Rejects Industry Bid for Retroactive Wetlands Permit Reviews The U.S. Army Corps of Engineers is refusing an industry bid to win reviews of permits issued prior to the Supreme Court's controversial Rapanos ruling, despite administrative and legal precedents developers have cited in urging the Corps and EPA to revise a landmark wetlands guidance to let industry seek reviews of the agencies' decisions. [Full article in PDF]

WETLANDS: Senate committee discusses court decisions' impact on Clean Water Act  By Katherine Boyle – Environment & Energy Daily – December 14, 2007 The Senate Environment and Public Works Committee yesterday discussed the effect of recent Supreme Court decisions on wetland protections in the Clean Water Act. Committee Chair Sen. Barbara Boxer (D-Calif.) described the hearing as "the opening round" in a series of discussions on Solid Waste Agency of Northern Cook Country (SWANCC) and Rapanos-Carabell and their effect on the phrase "waters of the United States" in the Clean Water Act.. In Rapanos-Carabell, the Supreme Court held that government wetland regulation should be limited primarily to navigable waterways and adjacent wetlands and should not extend to man-made ditches and other seasonally or intermittently wet areas. At issue is whether the court decisions preserved the wetland protections in the 1972 Clean Water Act, which uses the phrase "navigable waters of the United States," or whittled them down beyond what Congress had intended. For more information on this, visit: http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_id=b4c06ac4-802a-23ad-4d79-67d143be2df9

Court reverses McWane conviction involving Birmingham plant The Decatur Daily – October 26, 2007 A federal appeals court struck down the convictions of pipe manufacturer McWane Inc. and three executives for environmental crimes involving the company's Birmingham plant. A three-judge panel of the 11th U.S. Circuit Court of Appeals cleared the company and Charles Robinson, vice president of environmental affairs, of a 2005 conviction that they filed a false report with the U.S. Environmental Protection Agency. The appeals court's order Wednesday called for a new trial for the Birmingham-based company and two co-defendants, former plant managers James Delk and Michael Devine, on convictions that they conspired to violate the federal Clean Water Act and discharged pollutants from McWane Cast Iron Pipe plant into Avondale Creek in north Birmingham. For full article, go to: http://www.decaturdaily.com/decaturdaily/news/071026/plant.shtml  For a direct link to the case, go to: http://caselaw.lp.findlaw.com/data2/circs/11th/0517019p.pdf

Wetlands wildlife at risk

By Bob Marshall – The Times Picayune – August 5, 2007 CWRA. If you're a duck hunter, or anyone else who cares about fish and wildlife, that acronym should become part of a personal crusade. It stands for the Clean Water Authority Restoration Act, a piece of federal legislation critical to your future. That is not some "the sky is falling" hyperbole from crazy Greens. It is the consensus of the wildlife science community. How united are they? The consensus includes Ducks Unlimited, not a group known for manning the barricades. Here's what's at stake. Isolated and temporary wetlands are key components of waterfowl nesting habitat, the backbone of the famed prairie pothole ecosystem on the northern prairies responsible for most duck production. For 30 years the Army Corps of Engineers and the Environmental Protection Agency included them among the protections granted to wetlands under the Clean Water Act. For full story, go to: http://www.nola.com:80/sports/t-p/index.ssf?/base/sports-31/118629447010690.xml&coll=1

Clean Water Act Jurisdictional Handbook

Environmental Law Institute – Press Release – July 18, 2007 Last year’s Supreme Court ruling in Rapanos v. United States left regulators, activists, and landowners nationwide scrambling to understand the scope of Clean Water Act jurisdiction over wetlands and streams. Unless and until Congress amends the law to clarify its intended coverage of the “waters of the United States,” we are left to sort out the present law. There is now a comprehensive resource designed to shed light on the topic, the Clean Water Act Jurisdictional Handbook, just released by the Environmental Law Institute (ELI). The ELI Handbook lays out the various tests for Clean Water Act coverage under current law. Additionally, the Handbook brings science to bear on the question of determining CWA coverage for certain categories of wetlands and streams, in a way that no other publication to date has attempted. The Handbook is a necessary and informative complement to the joint guidance document issued last month by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers to guide their respective field staff in making jurisdictional determinations in the wake of the Rapanos decision. For a direct link to the Handbook, visit: http://www2.eli.org:80/newbooks/cwa_handbook.htm

After Lobbying, Wetlands Rules Are Narrowed

By John Broder – New York Times – July 5, 2007 After a concerted lobbying effort by property developers, mine owners and farm groups, the Bush administration scaled back proposed guidelines for enforcing a key Supreme Court ruling governing protected wetlands and streams. The administration last fall prepared broad new rules for interpreting the decision, handed down by a divided Supreme Court in June 2006, that could have brought thousands of small streams and wetlands under the protection of the Clean Water Act of 1972. The draft guidelines, for example, would allow the government to protect marsh lands and temporary ponds that form during heavy rains if they could potentially affect water quality in a nearby navigable waterway. For full story, go to: http://www.nytimes.com:80/2007/07/06/washington/06wetlands.html?ex=1184385600&en=f651fdc51964a427&ei= 5070&emc=eta1

EPA, Corps of Engineers Working to Clarify Federal Wetland Role

By Karl Blankenship – Chesapeake Bay Journal – July 9, 2007 Some of the nation’s headwater streams and wetlands would lose federal protection under guidance issued by the EPA and Army Corps of Engineers in June, which sought to interpret a jumbled ruling by the U.S. Supreme Court last year. The guidance sent to the field staffs of the two agencies, which are the primary federal entities for wetland protection, does not explicitly remove any areas from protection but establishes new tests that must be met before they can assert federal authority over certain areas. “This interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations,” said John Paul Woodley, Jr., the assistant secretary of the Army who oversees the Corps of Engineers. For full article, go to: http://www.bayjournal.com:80/article.cfm?article=3125

Justices Divided on Protections Over Wetlands (New York Times) (PDF)

Divided Supreme Court Rules on Wetlands Law (NPR)

Supreme Court Affirms Wetlands Protections (ABC News)

Supreme Court Tackles Wetland Protection

Justices Rein In Clean Water Act (Washington Post)

Supreme Court Rules Against Excessive Regulation (National Association of Home Builders)

Press Releases

EPA, Army Corps Extend Public Comment Period for Joint Rapanos Guidance Contact: Enesta Jones, (202) 564-4355; jones.enesta@epa.gov EPA and the U.S. Army Corps of Engineers (Corps) are extending the public comment period for the interagency joint guidance on the scope of Clean Water Act geographic jurisdiction following the U.S. Supreme Court's decision in Rapanos v. United States. The public comment period has been extended 45 days and comments on the guidance and experiences with its implementation are now due by January 21, 2008. EPA and the Corps issued the guidance in June 2007, consistent with the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies' jurisdiction under the Clean Water Act. The guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush Administration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement and protection of 3 million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes. During the early implementation of the guidance, the agencies are inviting public comments on case studies and experiences in applying the guidance. Comments can be submitted to docket EPA-HQ-OW-2007-0282 through www.regulations.gov. The agencies, within nine months after the Rapanos guidance has been issued, intend to either re-issue, revise, or suspend the guidance after carefully considering the public comments received and field experience with implementing the guidance. For more information, see: http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html
Carabell/Rapanos Guidance Released June 5, 2007. The guidance and related documents are posted to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers websites.
	U.S. Environmental Protection Agency: http://www.epa.gov/
		·	EPA, Army Corps Issue Joint Guidance to Sustain Wetlands Protection Under Supreme Court Decision
		·	Clean Water Act Definition of "Waters of the United States"
		·	Legal Memorandum: Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States (PDF)
		·	Memorandum of Agreement (PDF)
		·	June 2007 Questions and Answers (PDF)

	CWA Guidance to Implement the U.S. Supreme Court Decision for the Rapanos and Carabell Cases
		U.S. Army Corps of Engineers Regulatory Program: http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm
		General Information:
			·	Memorandum Re: CWA Jurisdiction Following U.S. Supreme Court discussion in Rapanos v. United States
			·	Memorandum for the Field: Coordination on JDs under CWA Section 404 in Light of SWANCC and Rapanos Supreme Court Decisions
			·	Federal Register Notice for Rapanos and Carabell Decision
			·	Press Release for Rapanos and Carabell Decision
			·	Key Points for Rapanos and Carabell Decision
			·	Guidance Highlights for Rapanos and Carabell Decision
			·	Questions & Answers for Rapanos and Carabell Decision
			·	CWA Jurisdiction Power Point Presentation
		U.S. Army Corps of Engineers Jurisdictional Determination (JD) Form Instructional Guidebook:
			·	Main Text
			·	Acronyms
			·	Questions and Answers
		Appendices:

					A.	Memorandum Re: CWA Jurisdiction Following U.S. Supreme Court discussion in Rapanos v. United State
					B.	Approved JD Form
					C.	Memorandum for the Field: Coordination on JDs under CWA Section 404 in Light of SWANCC and Rapanos Supreme Court decisions
					D.	“Traditional Navigable Water”
					E.	RGL 07-01. Practices for Documenting Jurisdiction under Section 404 of the Clean Water Act (CWA) and Sections 9 & 10 of the Rivers & Harbors Act (RHA) of 1899
					F.	RGL 05-02. Expiration of Geographic Jurisdictional Determinations
					G.	RGL 06-01. Determining the Timeliness of Requests for Appeal (RFA)
					H.	RGL 05-05. Ordinary High Water Mark (OHWM) Identification

National Wildlife Federation: High Court Places in Doubt Federal Safeguards for Countless Waters
Ducks Unlimited: Supreme Court Decision Bad for Wetlands, Hunters and Anglers
High Court Places in Doubt Federal Safeguards for Countless Waters (E-Wire)
Briefs
Brief for the United States
Brief for Carabell
Brief for Rapanos
Friends of the Court Briefs from States and State Organizations (on behalf of the United States)
ASWM/ASFPM/NEIWPCC Brief
State Attorney General's Brief
Association of State and Interstate Water Pollution Control Agencies Brief
Friend of the Court Brief (on behalf of Carabell/Rapanos) which included Utah and Alaska
Alaska, Utah, Western Urban Water Coalition, Natl. Water Resources Assn., Assn. of Calif. Water Agencies, Central Arizona Water Conservation District, State Water Contractors, Metropolitan Water District of Southern California, Westlands Water District, San Diego County Water Authority and California Farm Bureau Federation: http://www.eswr.com/1105/rapanos/rapakutahetal.pdf.
Additional Information on Carabell/Rapanos
Endangered Species and Wetlands Report has posted a comprehensive web page available to the public at http://www.eswr.com/1105/rapanos/. This includes all the relevant Supreme Court information, amicus briefs filed and more. ESWR is a newsletter covering endangered species and wetland issues that can be subscribed to at http://www.eswr.com/aaeswr.htm.
Maps and Pictures of Carabell and Rapanos Sites
The Rapanos and Carabell cases both arose in Michigan. These cases have attracted national attention, but few pictures have been available of these sites.
Rapanos:
The Rapanos case before the Supreme Court is a civil case where Mr. Rapanos, has been found guilty of filling and draining a total of 54 acres of wetlands at three different sites without state or federal permits, and challenged the jurisdiction of federal agencies over these wetlands. Michigan's Department of Environmental Quality coordinated with the U.S. Environmental Protection Agency in carrying out the original enforcement action under Michigan's state administered Section 404 Permit program. Wetlands impacted by Mr. Rapanos' activities included 15 acres of mostly forested wetland directly adjacent to the boatable Pine River (Pine River site) - a major tributary of the Tittabawassee River; and 17 acres of mixed wetland habitat adjacent to the Rose Drain, (Hines Road Site) about one mile from its confluence with the Tittabawassee River. In addition to the civil conviction, Mr. Rapanos was found guilty in a federal criminal trial of destroying at least 22 acres of wetlands at the headwaters of the Kawkawlin River (Salzburg Site). Rapanos previously appealed this case to the Supreme Court, but the court declined to review it.
Rapanos Sites: Pine River Site Hines Road Site Salzburg Road Site
The one picture that has been published in the media is one of John Rapanos standing in a field at the Salzburg road site (April 2004 Transverse City Record Eagle) over 15 years after it was drained and filled by Rapanos in the mid to late 1980's.
Carabell
The permit application to alter the Carabell property dates back to the mid-80's. In the Carabell case, the landowner applied for a permit to clear, drain, and fill almost 16 acres of forested wetland located approximately one mile from Lake St. Clair (and in close proximity to the "Riverside Bayview" property which was the subject of a previous Supreme Court ruling extending federal jurisdiction to wetlands adjacent to stream systems). This permit application was denied by the Corps of Engineers in part because the landscape of forested wetlands in close proximity to Lake St. Clair -- a part of the Great Lakes system lying between the U.S. and Canada and connecting Lake Huron and Lake Erie -- has been seriously degraded by historical development.
Carabell Site
CWA Jurisdiction Issues and the Supreme Court
The Carabell/Rapanos combined case is the third case addressing Clean Water Act Jurisdiction that has been heard by the Supreme Court in recent years. In the first, Riverside Bayview, (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=474&invol=121) the court decided unanimously that the wetland in question was jurisdictional under the Clean Water Act.
In the second, SWANCC, the Supreme Court determined the gravel pit ponds under consideration were not jurisdictional and invalidated the "migratory bird rule" not a rule, but preamble language in a rule which asserted the use of a wetland by migratory birds provided justification for asserting jurisdiction. Birds go everywhere so the migratory bird rule allowed the Corps and EPA to assert jurisdiction over a wetland provided it met the wetland delineation criteria (soils, plants and hydrology). This did not mean that the agencies did assert jurisdiction in all cases, only that they could. With the loss of the migratory bird rule, the agencies needed to identify alternative criteria for asserting jurisdiction and following SWANCC there has been heavy reliance placed on hydrologic connections- visible streams, rivers, ditches etc. This has also created uncertainty regarding jurisdiction over wetlands that did not have a readily identified hydrologic connection. Inconsistencies in Corps jurisdictional determinations since SWANCC have been documented in reports including:
'Waters and Wetlands: Corps of Engineers Needs to Better Support Its Decisions for Not Asserting Jurisdiction' Government Accounting Office Report GAO-05-870
The Subcommittee on Water Resources and Environment Hearing on Inconsistent Regulation of Wetlands and Other Waters
Reckless Abandon: How the Bush Administration is Exposing the Nation's Waters to Harm
Following SWANCC there was a great deal of activity in the courts with respect to Clean Water Act jurisdiction. This has been summarized by DOJ (through fall 2006) and National Wildlife Federation (to present). These courts in every case asserted Clean Water Act jurisdiction for the waters in question and in all by one case (Needham) the courts indicated they supported an inclusive definition of waters subject to the Clean Water Act. Two court decisions that perhaps best articulate this viewpoint are:
United States v. Deaton
United States v. Gerke Excavating, Inc.
The majority of these cases addressed tributaries rather than wetlands. The post SWANCC importance of hydrological connection in asserting jurisdiction has focused attention on the issue of the extent of jurisdiction into small streams. This is a complex issue because streams in upper parts of the watersheds may be dry part of the year (intermittent and ephemeral) and millions of miles of streams have been straightened moved and altered over the past 200 years. Many of these altered streams are described as ditches. There are also an undetermined number of ditches that are manmade in upland. To add to the complexity of this issue; changes in land use can alter stream flow making intermittent streams perennial (flowing year round) and making perennial stream intermittent. Even roadside ditches may serve as important waterways because they are used to provide drainage from areas where historic streams have been eliminated. Extensive use of roadside ditches for conveyance of water that previously followed other water courses was documented in Minnesota (Task Force Report on Effects of Road Construction on Wetland Wildlife Habitat, March 1975, U.S. Department of the Interior).
Administration Position on Clean Water Act Jurisdiction
At the national level the administration has continued to support a broad definition of Clean Water Act jurisdiction in the circuit court cases and the most recent Carabell/Rapanos Supreme Court case. This is clearly illustrated in the lively discussion between the Supreme Court Justices and Solicitor General Samuel Clement beginning on page 38 of the transcript of the oral arguments (see link above). The Solicitor General states that "the reason why it makes sense to regulate that very first tributary that flows into the Mississippi is the reason that it makes sense to regulate the entire tributary system. All of that water is going to flow down into the navigable waters." The complete transcript of the oral arguments are available at: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1034.pdf
Supreme Court Wetland Cases Affect All Waters and Water Programs Under the Clean Water Act
The Rapanos/Carabell court cases, as well as earlier cases impact the definition of waters under the Clean Water Act as a whole, not just dredge and fill activities under Section 404. Areas identified as not jurisdictional will affect Clean Water Act jurisdiction over point sources, oil spills etc. In a March 2006 article in "Industrial Water World- Roberta Savage past executive director of the Association of State and Interstate Water Pollution Control Agencies stated: The statutory term at issue in this case, "waters of the United States," is integral not just to the CWA §404 dredge and fill provisions, but to jurisdictional reach of all clean water programs under the act. This definition is the lynchpin for state water quality standards under §302 and §303, national performance standards under §306, toxic and pretreatment standards under §307, oil and hazardous substance liability under §311, aquaculture standards under §318, state water quality certifications under §401, and national pollution discharge permitting requirements under section §402. (Full article is located at: http://ww.pennnet.com/Articles/Article_Display.cfm?Section=ARTCL& ARTICLE_ID=252614& VERSION_NUM=2&p=64)
Digest of Significant Decisions Addressing SWANCC, U.S. Department of Justice
National Wildlife Federation Summary of Post SWANCC Case Law (through spring 2006)
Waters of the U.S. After SWANCC by Jon Kusler, Association of State Wetland Managers, Inc.
Importance of Headwater Streams and Wetlands (including intermittent, ephemeral, and "isolated" waters)
Following the SWANCC decision Federal agencies, states, scientists and various interest groups became engaged in a series of scientific evaluations and analyses of the extent and importance of isolated wetlands as well as headwater streams and their adjacent wetlands in achieving the goals of the Clean Water Act.
To understand the importance of headwater streams and wetlands it is important to understand and visualize a watershed. A watershed is a series of smaller streams draining into larger ones that can be pictured as a tree stretching over the landscape. The trunk is the major river flowing to the sea. The branches are major tributaries flowing to the trunk (for example the Ohio and Missouri rivers are tributaries (branches) to the Mississippi (trunk). Streams flow into streams that flow into streams. High up in the watershed, the area called the headwaters, streams are very small. A tree has many more small twigs and leaves than large branches. A watershed is like this as well. So it is logical that headwaters make up most of the tree. The tree dies if all the twigs and leaves are removed. A river becomes degraded if there is extensive alteration and change in its small tributaries. Based on this tree analogy there would many more stream miles of these small streams (twigs) than major streams and rivers (large branches and tree trunk). It is possible to imagine the leaves on the tree as small wetlands, but here the tree analogy falls short since there are also extensive wetland systems associated with major rivers.
Over the past couple of years, EPA has gathered information to assess the potential impact if a Supreme Court decision removed headwaters, small streams and wetlands from the CWA jurisdiction. ASWM queried EPA and received the following information quantifying the importance of these waters.
In a letter to ASWM dated January 9, 2006 EPA Assistant Administrator for Water, Ben Grumbles stated: that 40% of the point source discharges permitted under Clean Water Act (excluding stormwater and nonstormwater general permits) were located on intermittent, ephemeral or very small perennial streams. In addition 90% of the source water protection areas providing drinking water for over 110 million Americans were located in the headwater areas of watershed in the U.S. (excluding Alaska). The complete letter is available at: http://www.aswm.org/fwp/letterbg.pdf.
These estimates as well as the information displayed on the maps and charts below represent a very conservative estimate of headwater areas in the U.S. The only national resource available is the National Hydrographic Dataset (the blue lines on USGS topographic maps). There is no direct way to derive "headwater areas" from the National Hydrographic Dataset (NHD) and EPA prepared its conservative estimate by mapping all intermittent and ephemeral steams contained in the NHD and the "start reaches", segments of perennial streams (those without other streams flowing into them), to develop a national and state by state estimate of headwater areas. In a second letter, dated January 11, Ben Grumbles provides a detailed description of how EPA developed this information. See http://aswm.org/swp/headwaters.htm. Individual states conducting similar analyses with better information may determine that the percentage of headwater areas in their states is in fact higher, and therefore the percentage source water protection areas for drinking water and point sources discharges regulated under the Clean Water Act in headwaters may be higher.
The following maps show the extent and concentration of intermittent, ephemeral and headwaters in the U.S. using the National Hydrographic Dataset:
Intermittent/Ephemeral Streams
Headwater Streams
The following maps display the same information for the State of Michigan:
Headwater Streams in Michigan
Intermittent and Ephemeral Streams in Michigan
Michigan Streams
A state-by-state breakdown of some of this information was also provided by EPA. The table identifies the extent of intermittent/ephemeral streams in each state and the population/drinking water systems dependent on these headwater areas as source of drinking water. http://www.aswm.org/fwp/state_data_request.pdf.
North Carolina's Analysis of the Importance of Headwater Streams and Wetlands
North Carolina has undertaken a number of studies to document the importance of headwaters in their state. While the EPA analyses determined headwaters comprise 71% of the waters in the state, the North Carolina study identified 75% of the waters in the state were headwaters. The North Carolina analyses establishes that headwater streams provide significant reductions in pollutants such as nutrients and sediment and are a major source of food for the fish, invertebrates and other aquatic wildlife downstream. More information on the North Carolina analyses is in the following memorandum and summary reports:
Memorandum on Water Quality and Aquatic Life Values of Headwater Streams and Wetlands
The Extent of Headwater Streams in North Carolina
The Ecological and Water Quality Value of Headwater Wetlands in North Carolina
The Value of Intermittent Streams in North Carolina
Waters of the United States
Under the Clean Water Act the Waters of the United States are defined simply as navigable waters for the purposes of implementing all the programs in the Clean Water Act. In the Supreme Court SWANNC decision Chief Justice Renquist stated that the term navigable waters must somehow constrain the extent of waters regulated.
One perspective is that only navigable waters and their direct tributaries should be regulated. This position was articulated by Reed Hopper on behalf of Rapanos in the oral arguments before the Supreme Court. An article that describes the reasoning for this position is:
·	ELR Article by Virginia Albrecht and Stephen Nickelsburg ("Could SWANCC Be Right? A New Look At the Legislative History of the Clean Water Act," 32 ELR 11042; September 2002)
The other perspective is that it is impossible to achieve the goals of the act " to protect the biological, chemical and physical integrity of the nation's waters"-even if those are only navigable waters-with out asserting jurisdiction over the entire tributary network and and adjacent wetlands. This position was articulated by the Solicitor General in the oral arguments before the Supreme Court in Rapanos/Carabell and supported by 34 states in the State Attorney General' Brief. This position is described in detail in:
·	Article by Lance Wood in Environmental Law Reporter ("Don't be Misled: CWA Jurisdiction Extends to All Non-Navigable Tributaries of the Traditional Navigable Waters and to Their Adjacent Wetlands," 34 ELR 10187, February 2004)
Other Sites of Interest:
U.S. Environmental Protection Agency: "Definition of Waters of the U.S."
Environmental nonprofits have supported a broad definition of CWA. Information they have developed can be found at:
Clean Water Network
Sierra Club: America's Waters at Risk
Sierra Club Wetlands
A Concerned Scientist Blog
Rapanos Blog, Pacific Legal Foundation
The regulated community has supported narrowing the definition of CWA Information they have developed can be found at:
Building A Balance: Wetlands Regulation, National Association of Homebuilders
NAHB Files Amicus Brief to Clarify Navigable Waters
Rapanos Blog from the Pacific Legal Foundation
National Federation of Independent Businesses
Documentation of the importance of isolated wetlands, headwaters and small/intermittent/ephemeral streams:
Where Rivers are Born: The Scientific Imperative for Defending Small Streams and Wetlands
Biodiversity Values of Isolated Wetlands of the United States report by Natuserve
The SWANCC Decision: Implications for Wetlands and Waterfowl by Ducks Unlimited
Geographically Isolated Wetlands: A Preliminary Assessment of their Characteristics and Status in Selected Areas of the United States by U.S. Fish and Wildlife Service

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