Environmental law is what we do. TM 1191 Second Avenue Suite 2200 Seattle, WA 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 , 2008 Jeff B. Kray - Marten Law Group PLLC

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 (2006).  In this case, the Supreme Court consolidated United States v. Rapanos and Carabell v. Corps of Engineers, two 6 th 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 6 th 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:  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 6 th 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 6 th 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. 7 th and 9 th Circuits - applied Kennedy “nexus” test:  Healdsburg (9 th 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. 1 st Circuit – either Kennedy or Scalia test applies:  Johnson (1 st 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 (9 th 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 (6 th 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  Introduces new lexicon into “Navigable Waters”. Out – “intermittent” and “ephemeral” streams. In – “significant nexus (‘SN’)”, “traditional navigable waters (‘TNW’)”, “relatively permanent waters (‘RPW’)”, and “non- relatively 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.

Intermittent Stream in August Intermittent Stream in March Example - Intermittent Stream

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  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 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 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 A 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. § ; 50 CFR § 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:

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 non- traditional 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),  However, at the federal level, tributary and wetlands jurisdiction will in many cases be decided on a case-by- case 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:(206) Web: News: