Clean Water Act (CWA)
and Endangered Species
Act (ESA) Developments That
Affect Southwestern Washington
Land Use in Southwestern Washington Conference
Law Seminars International CLE
February 11 - 12, 2008
Jeff B. Kray - Marten Law Group PLLC
Environmental law is what we do. TM
1191 Second Avenue
Suite 2200
Seattle, WA 98101
www.martenlaw.com
Introduction – Clean Water Act


Who has jurisdiction over tributaries and
wetlands?
 Federal, State, and Local Jurisdiction
Federal Jurisdiction – Dependent on
whether the water is “navigable” (interstate
commerce)
 Clean Water Act (CWA) § 404
 Rivers and Harbors Act (RHA)
 Coastal Zone Management Act (CZMA)
Introduction – Clean Water Act

State Jurisdiction






CWA § 401 – Jurisdiction dependent on whether the
water is “navigable?”
Washington Pollution Control Act (WPCA) - “waters of
the state”
Shoreline Management Act (SMA) - “shorelines of the
state”
Forest Practices Act (FPA) - “waters of the state”
Hydraulic Code (HC) – “fish and shellfish”
Local Jurisdiction


Shoreline Management Act (SMA) – “shorelines”
Growth Management Act (GMA) – “critical areas”
Rapanos – Federal Authority
Over “Navigable Waters”

Background: Rapanos v. United States,126 S. Ct. 2208 (2006).

In this case, the Supreme Court consolidated United States
v. Rapanos and Carabell v. Corps of Engineers, two 6th
Circuit decisions on appeal.

In Rapanos, developers dredged and filled wetlands
connected to navigable waters by a man-made drain.

In Carabell, a developer sought to build a condo on wetlands
separated by a man-made berm from a ditch connected to
downstream tributaries.

In both cases, the developers argued that the U.S. Army
Corps of Engineers (“Corps”) exceeded its CWA jurisdiction
by seeking to require permits for filling the wetlands.
Rapanos – Federal Authority
Over “Navigable Waters”

Background (cont.):

In both cases, the 6th ruled that the Corps had CWA jurisdiction
because the wetlands were adjacent to tributaries of navigable
waters and a nexus existed between the wetlands and “waters
of the United States.”

The CWA prohibits the discharge of pollutants, including
“dredged spoil...rock, sand, [and] cellar dirt” into “navigable
waters” from any point source.

The CWA defines “navigable waters” to mean “waters of the
United States.”

The Corps has interpreted “waters of the United States” to
include adjacent wetlands and tributaries, even when separated
by man-made structures.
Rapanos – Federal Authority
Over “Navigable Waters”

Issues:

Whether the Corps exceeded its CWA
authority by requiring property owners to
acquire permits before dredging and filling
wetlands?

When are “wetlands” considered “waters
of the United States” subject to federal
(commerce clause) jurisdiction under the
CWA?
Rapanos – Federal Authority
Over “Navigable Waters”

Decision:




4-4-1 Split (Scalia, Stevens, Kennedy authored
opinions)
Scalia (Roberts, Thomas, and Alito) plurality
advanced a two-prong test.
Stevens (Souter, Ginsburg, and Breyer) dissenting
plurality found that the wetlands were not isolated
from navigable waters and would affirm 6th Circuit.
Kennedy rejected Scalia’s test as inconsistent with
the CWA, advanced a test that would require the
Corps to establish a “significant nexus” between
navigable waters on a case-by-case basis, and
remanded the cases to the 6th Circuit.
Rapanos – Federal Authority
Over “Navigable Waters”

Tests: Scalia’s two-prong test requires
finding:
1. The adjacent channel contains a “water
of the United States,” and
2. The wetland has a continuous surface
connection with that water, making it
difficult to determine where the “water”
ends and the “wetland” begins.
Rapanos – Federal Authority
Over “Navigable Waters”

Tests: Scalia’s two-prong test requires finding:

Narrowly construes “waters of the United States” to
include 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.”

As opposed to ordinarily dry channels “through which
water flows intermittently or ephemerally…”
Wetlands and water-bodies physically distant are not
“adjacent to” navigable waters by virtue of a mere
hydrologic connection to them.


Would remove many wetlands and intermittent and
ephemeral streams from the Corps’ CWA jurisdiction.
Rapanos – Federal Authority
Over “Navigable Waters”

Tests: Kennedy’s “significant nexus” test requires:

A requisite nexus, on a case-by-case basis, between
wetlands and navigable waters.

Nexus exists if the wetlands significantly affect the
chemical, physical, and biological integrity of other
covered waters more readily understood as
“navigable.”

Continually flowing and continuous surface
connection are not necessary.

Nexus must be assessed in terms of CWA’s goals
and purpose of protecting water quality.
Rapanos – Federal Authority
Over “Navigable Waters”

The Federal Circuits have split on which Rapanos test to
apply.

7th and 9th Circuits - applied Kennedy “nexus” test:


Healdsburg (9th Cir.): Held that City’s sewage discharges
into a rock quarry pit require an NPDES permit when the
pit has a hydrological connection to the adjacent Russian
River.
1st Circuit – either Kennedy or Scalia test applies:

Johnson (1st Cir.): Remanded to District Court to
determine whether cranberry farmers violated CWA by
discharging dredged and fill material without a permit.
Rapanos – Opportunities for
Clarification: Supreme Court Review


Baccarat Freemont Dev. v. Corps (9th Cir.)

Petition for Cert. from decision holding that Corps
had jurisdiction over California developers
wetlands that separated from navigable waters by
a man-made berm.

Cert. denied February 20, 2007
U.S. v. Morrison (6th Cir.)

Petition for Cert. from unpublished wetlands
decision.

Cert. denied March 5, 2007.
Rapanos – Opportunities for
Clarification: Regulation/Legislation

Rulemaking? Unknown.

Despite encouragement from Supreme Court.

Deference?

Legislation? Maybe.

Regulatory Guidance? Yes.

Corps and EPA “Joint Guidance Memo” June 2007.

Introduces new lexicon into “Navigable Waters”.

Out – “intermittent” and “ephemeral” streams.

In – “significant nexus (‘SN’)”, “traditional navigable waters
(‘TNW’)”, “relatively permanent waters (‘RPW’)”, and “nonrelatively permanent waters (‘Non-RPW’)”.
Rapanos – Opportunities for
Clarification: Joint Guidance

Joint Guidance Memo’s New Lexicon.

Jurisdictional.
 Traditionally Navigable Waters (“TNW”).
 Relatively Permanent Waters (“RPW”).
 Flow year-round or continuous seasonally (e.g., 3 months).
 Wetlands adjacent to TNW or directly abutting (e.g., continuous
connection to) RPW.

Possibly Jurisdictional, e.g. decided under “Significant Nexus” Test
 Non-RPW.
 Wetlands adjacent to non-RPW
 Wetlands adjacent to, but not abutting, RPW

Not Jurisdictional.
 Swales, small washes, ditches excavated wholly in and draining
only uplands with low volume, infrequent, or short duration flow.
Rapanos – Opportunities for
Clarification: Joint Guidance

Joint Guidance Memo’s “Significant Nexus Test.”


A “significant nexus” exists where a water, either alone or in
combination with other similarly situated waters, significantly
affects the chemical, physical, and biological integrity of a
downstream traditional navigable water.
Requires a case-by-case analysis of:

Hydrologic factors





Flow volume, duration, and frequency
Proximity to TNW
Tributary watershed size
Average annual rainfall
Ecologic factors



Pollutant capacity
Aquatic habitat
Water quality affects
“…either alone or in combination with other
similarly situated waters …”
“Relevant reach” - Defines the portion of a tributary to consider for
significant nexus test. It includes the entire stream segment of the
same order and its adjacent wetlands.
Example - Intermittent Stream
Intermittent Stream in August
Intermittent Stream in March
Delegated State Authority –
CWA § 401 – Navigable Waters

CWA § 401 provides delegated state authority over federally
licensed activities that “may result in any discharge into
navigable waters.”

PUD No. 1 of Jefferson Cy. v. Ecology (S. Ct. 1994).

“States may condition § 401 certification upon any
limitations necessary to ensure compliance with state
water quality standards.”

Such additional state limitations include “any other
appropriate requirement of state law.” Example, minimum
stream flows for fish.

Broad state authority reaffirmed in S.D. Warren v. Maine
(S. Ct. 2006).
Delegated State Authority –
CWA § 303

CWA § 303 requires each state to establish
comprehensive water quality goals for all
intrastate waters.

“Antidegradation” policy to ensure that state
standards maintain existing beneficial uses
of navigable waters and prevent further
degradation.

CWA § 303 state antidegradation standards
among CWA § 401 “other state limitations.”
Sovereign State Authority – Water
Pollution Control Act (WPCA)

WPCA includes, in part, state’s CWA delegated authority.
However, state also has sovereign authority over intrastate
waters.

WPCA applies to “waters of the state.”

“…lakes, rivers, ponds, streams, inland waters,
underground waters, salt waters and all other surface
waters and watercourses within the jurisdiction of the
state of Washington.” RCW 90.48.020.

Including intermittent and ephemeral streams? Yes.

Included in “streams.”

Also included in “catchall” “all other surface waters
and watercourses.”
Other State Authority Over Intermittent
and Ephemeral Streams

Hydraulic Code (HC), Chapter 77.55 RCW

Purpose is to ensure that construction activities
in or near state waters do not damage fish and
shellfish or their habitat.

Washington Department of Fish and Wildlife
(WDFW) has authority to issue Hydraulic
Project Approval (HPA) permits for construction
activities that “use, divert, obstruct, or change
the bed or flow of state waters.”

Regulations include “watercourses which flow
on an intermittent or ephemeral basis.”
Local Authority Over Intermittent
and Ephemeral Streams

Shoreline Management Act (SMA), Chapter
90.58 RCW.




SMA is intended to manage shoreline
development.
Each Washington county, and each city with
“shorelines of the state” must prepare a shoreline
master program (SMP) to regulate shorelines
with SMA jurisdiction.
Ecology reviews and approves SMPs.
Construction within SMA jurisdiction generally
requires a Substantial Development Permit.
Local Authority Over Intermittent
and Ephemeral Streams

Growth Management Act (GMA), Ch. 36.70A
RCW.

The GMA was enacted to discourage
uncoordinated and unplanned growth.

All cities and counties must adopt ordinances to
protect “critical areas.” Many cities and counties
are also required to prepare “comprehensive
plans” for future development.

Intermittent and ephemeral streams may fall
under the GMA’s critical areas protection and/or
in comprehensive plan development.
Endangered Species Act (ESA)
Regulations Framework


The Endangered Species Act of 1973, 16 U.S.C. § 1531
– 1544 (“ESA”) requires the Secretaries of Commerce
and the Interior to:

Prepare lists of endangered and threatened species

Develop and implement recovery plans for listed
species

Designate critical habitat for listed species
These responsibilities are implemented by the National
Marine Fisheries Service (NMFS) and the U.S. Fish &
Wildlife Service (FWS) through an MOA.
ESA - Effect on Government
Programs?

Every federal agency must ensure that its activities, including issuing
permits, will not jeopardize the continued existence of threatened or
endangered species, unless it has obtained an exemption.

NMFS and FWS must develop and implement recovery plans for
listed species. Recovery plans must incorporate:

A description of site specific management actions necessary to
achieve recovery of the species;

Objective, measurable criteria which, when met, would result in
a determination that the species be removed from the list; and

Estimates of the time and costs required to achieve the plan’s
goal.
ESA - Section 9 “Take”
Prohibitions

It is illegal to “take” listed species.

“Take” is defined broadly to mean (among
other things) to harass, harm, injure, or kill
listed species.

Regulations define “harm” to include significant
habitat alteration which actually kills or injures
fish or wildlife by significantly impairing essential
behavior patterns.
ESA - Section 10 Permits



NMFS and FWS may issue permits to non-Federal governmental
entities and private landowners authorizing incidental take of
listed species for actions conducted to an approved conservation
plan.

ESA Section 10(a)(1)(B); 50 C.F.R. § 222.307; 50 CFR § 17.32
To receive an incidental take permit an applicant must submit a
conservation plan, often referred to as a “Habitat Conservation
Plan” (HCP).
HCPs are designed to offset harmful effects a proposed activity
might have on listed species and can include planning for unlisted
species.

Resource: Regulations and policies available at:
http://www.nmfs.noaa.gov/pr/laws/esa/policies.htm#permits.
ESA - Critical Habitat

Federal government must designate “critical
habitat” for any listed species, defined as:

Specific areas within the geographical area
occupied by species at time of listing, if they
contain physical or biological features essential to
conservation, and those features may require
special management considerations or protection;
and

Specific areas outside the geographical area
occupied by the species if the agency determines
that the area itself is essential for conservation.
Conclusion - ESA

Potential ESA Impacts on Development
Projects?

Continued scrutiny of potential water
quality impacts and mitigation measures
related to salmon recovery

Continued emphasis on salmon
restoration measures

Increased use of HCPs
Conclusion – Clean Water Act

Why is Rapanos significant?




Rapanos illustrates continuing (and increased)
uncertainty about the Corps’ jurisdiction over nontraditional navigable waters and wetlands.
State jurisdiction is broader; states and local government
may fill the jurisdictional gap. Consult with Washington’s
Office of Regulatory Assistance (ORA), www.ora.wa.org.
However, at the federal level, tributary and wetlands
jurisdiction will in many cases be decided on a case-bycase basis.
Watch for revised policy guidance or new legislation.
Thank you for attending.
For additional information on
today’s topics, please contact:
Jeff Kray
Tel:
Email:
Web:
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(206) 292-2608
jkray@martenlaw.com
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