January 18, 2008
Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
To Whom It May Concern:
This letter is in response to your solicitation for public comments on the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) guidance on 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 Resource Development Council (RDC) is a statewide, non-profit business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism and fisheries industries. RDC’s membership includes Alaska Native corporations, local communities, organized labor and industry support firms. Our purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through responsible resource development.
Rapanos was a 5-4 decision, with no majority opinion of the Court. Therefore, the lower federal courts will have much to quibble about in interpreting the ultimate meaning of Rapanos as applied to dredge and fill permitting under the Clean Water Act.
In Rapanos, Justice Scalia’s plurality opinion held that the phrase “waters of the United States” as used in the CWA “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” When applied to wetlands,Justice Scalia’s opinion held “only those wetlands with a continuous surface connection to bodies are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”
But Justice Kennedy’s concurring opinion held that the Corps should have federal jurisdiction over those wetlands that have a “significant nexus” to navigable waters of the United States a standard that must be applied on a case-by-case basis. Given that there was no majority opinion in Rapanos, it is unclear exactly what standard lower courts will apply in determining the Corps’ jurisdiction. Most recently, the Ninth Circuit Court of Appeals has held that Justice Kennedy’s “significant nexus” test is the controlling opinion in Rapanos. See San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir. 2007); Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007).
Under either Justice Scalia’s opinion, or Justice Kennedy’s concurring opinion, however, the Corps no longer appears to have the same broad authority to assert as it did prior to Rapanos federal jurisdiction under the CWA over transitory, ephemeral, or intermittent “waters,” or wetlands with a “mere hydrological connection” to “waters of the United States.” As Justice Scalia explained in his opinion, the CWA “simply does not authorize the ‘Land is Waters’ approach to federal jurisdictions” that the Corps had been asserting.
Agency guidance, jurisdictional determinations and other relevant actions must be consistent with the Court’s decision in Rapanos. At a minimum, according to Justice Kennedy’s concurrence, for a wetland to “possess the requisite nexus” to fall within the ambit of the CWA (and therefore the Corps’ federal jurisdiction), the wetlands “either alone or in combination with similarly situated lands in the region” must “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
The Supreme Court’s divided message in Rapanos at least made clear that the Corps cannot assert jurisdiction for dredge and fill of wetlands that have only a tenuous connection to navigable waters. In such a case, the applicable state/local governmental regulatory agency has jurisdiction over any wetland dredge and fill permitting required under applicable state/local environmental laws and regulations, if any. Agency guidance must reflect the Court’s intent in its decision in Rapanos, as outlined above.
Following the Court’s decision, the guidance developed by the agencies requires the Corps to “document in the administrative record the available information regarding whether a tributary and its adjacent wetlands have a significant nexus with a traditional navigable water” The guidance points out that documentation is increasingly important for sites as the distance from a navigable water increases. In addition, the guidance requires a description of wetland functions and other attributes. While these directives are reasonable, such documentation is likely to result in significant delays in the permitting process. Such delays are even more likely in icy arctic areas where a significant nexus to a traditional navigable water may be difficult to determine. Moreover, delays are likely in many areas of Alaska where field work is limited by the short duration of the season. All told, it is likely that documentation requirements will result in delays of at least one year in the permitting process. Given such potential for delay, RDC encourages the Corps to:
- Immediately fund an effort to identify jurisdictional boundaries in areas where a substantial number of permits are likely to be requested, even before permit applications are filed;
- Consider interim guidelines that could be applied while jurisdictional boundaries are identified.
The Corps should consider how changes in jurisdiction might affect existing permits and permit requirements. For example, permits that require rehabilitation or restoration efforts including up to ten years of monitoring may have been issued for projects that are no longer on jurisdictional wetlands based on guidelines stemming from the Rapanos decision. Active permits should be addressed and permits holders notified within one year if permit conditions still apply.
Given Alaska’s unique conditions, any revised or new guidance provided by the Corps should include regional guidance with examples or case studies. Development of regional guidance should include broad participation in the process from the regulated and regulatory communities. Likewise, the revised form the Corps and EPA are developing for field regulators for documenting the assertion or delineation of CWA jurisdiction should be specific to Alaska. Development of both national and regional forms should be a public process, open to review and comment.
Agency guidance should recognize Alaska’s unique circumstances. While scarcity is an overriding concern elsewhere in the nation, the sheer abundance of wetlands in Alaska is an important element to take into consideration (Alaska contains more wetlands than all other states combined). Alaska is a state with substantial, remote wetlands. Often there are challenges associated with identifying a nexus to traditional navigable waters, especially in ice-rich regions. The limited field season and the lack of understanding of functions for some types of Alaskan wetlands are two other challenging elements that should be recognized.
Last, we were troubled by the fact that the existing guidance contemplates that elevated jurisdictional determinations have no established timeframe for resolution at EPA and Corps headquarters. This presents a significant issue for developers who need predictable timeframes for permitting. We strongly encourage the agencies to develop and identify a specific time frame (e.g., 30 days) for making decisions on elevated jurisdictional determinations.
Thank you for the opportunity to comment on this important issue. RDC encourages the EPA and Corps to combine their best efforts and issue guidance that clearly reflects the intent of the Rapanos decision and includes regional guidance recognizing the special nature of Alaska.
Resource Development Council for Alaska, Inc.