EPA Waters of US

					                                                                           535

              ALI-ABA Course of Study
             Wetlands Law and Regulation

Cosponsored by the ABA Section of Environment, Energy, and Resources and
                  the Environmental Law Institute (ELI)

                       May 2 - 3, 2012
                       Washington, D.C.




        The Waters of the United States:
               What Are They?
What's Happening Now To Make Them Clear (er)?

                                 By

                    Stephen L. Samuels
                 U.S. Department of Justice
                     Washington, D.C.

                    David A. Evans
         U.S. Environmental Protection Agency
                   Washington, D.C.

                    Deidre G. Duncan
                  Hunton & Williams LLP
                    Washington, D.C.
536
2
 The Waters of the United States:
               What Are They?
What’s Happening Now To Make Them Clear(er)?


                 ALI-ABA
        Wetlands Law and Regulation
             Washington, D.C.
               May 3, 2012

                Stephen Samuels
                  David Evans
                 Deidre Duncan
                                               537
                                            538




My Miranda Rights:
• Nothing I say today may be held against
 the Department of Justice or the United
 States government. Any opinions I
 express are mine alone and do not
 necessarily reflect the views of the
 Attorney General, the President, or
 anyone else who matters.
CWA Statutory Definition

“Navigable waters” =
   “the waters of the United States,
   including the territorial seas”
                                       539
                                                               540




    Riverside Bayview (1985)
• Unanimously upheld authority to regulate adjacent wetlands
• The term “navigable” is of “limited import”


     SWANCC (2001)
• By 5-4 vote, held that Corps could not
  regulate isolated, non-navigable,
  intrastate waters based solely on their
  use as habitat by migratory birds

• The term “navigable” may have “limited
  effect,” but not “no effect”
Rapanos v. U.S., 547 U.S. 715
(June 19, 2006)

• 5 opinions
• No opinion received a majority of votes
• All 9 Justices rejected
 petitioners’ position that
 only wetlands adjacent to
 NIF waters are jurisdictional
                                            541
                                                            542




    Rapanos Decision – Plurality
• CWA covers “relatively permanent” waters

  -- “Waters of the US” does not include channels through
  which water flows intermittently or ephemerally
  -- But: seasonal rivers not necessarily excluded

• Only those wetlands with a “continuous surface
  connection” to relatively permanent water bodies are
  covered
Rapanos Decision – Concurrence
• Corps may rely on adjacency alone with respect
  to wetlands adjacent to navigable-in-fact waters

• With respect to wetlands adjacent to non-
  navigable waters, Corps must establish a
  significant nexus on a case-by-case basis,
  absent regulations
                                                     543
                                              544




Rapanos Decision – Dissent
• “Given that all four Justices who have
 joined this opinion would uphold the
 Corps' jurisdiction in both of these cases
 - and in all other cases in which either
 the plurality's or Justice Kennedy's test
 is satisfied - on remand each of the
 judgments should be reinstated if either
 of those tests is met.”
What Standard Applies?
                                        1st Cir: U.S. v. Charles Johnson
                                        3rd Cir: U.S. v. Donovan
                                        8th Cir: U.S. v. Bailey
                                        M.D. Fla.: U.S. v. Evans
                                        D. Conn.: Simsbury-Avon
                                                    Simsbury-
                                        W.D. Ky.: U.S. v. Cundiff
                                        D. Or.: Benjamin v. Douglas Ridge
                                        D. Wy.: U.S. v. Hubenka


   11th Cir: U.S. v. McWane
   9th Cir: City of Healdsburg; Moses; Wilcox
                    Healdsburg; Moses;
   7th Cir: U.S. v. Gerke Excavating

   N.D. Cal.: EPIC v. Pacific Lumber Co.
                                     Co.
   E.D. Pa.: U.S. v. Pozsgai
   N.D. Ind.: U.S. v. Fabian
   C.D. Ill.: U.S. v. Lippold
   D. Or.: U.S. v. Cam
   E.D.N.C.: U.S. Freedman Farms




    None
                                                                            545
                                                  546




What Standard Applies?

           6th Cir: U.S. v. Cundiff


           5th Cir: U.S. v. Lucas


           N.D. Tex.: U.S. v. Chevron Pipe Line
           Co.
Certiorari Denied!


           Gerke, Johnson,
          Healdsburg, Moses,
            Lucas, Cundiff

               McWane
                               547
                                 548




        What Standard Applies?

?              ?        ?
    ?              ??
          ?         o
                    /
            Merits Decisions Finding CWA Jurisdiction
•   Northern California River Watch v. City of Healdsburg (9th Cir.)

•   U.S. v. Moses (9th Cir.)

•   U.S. v. Lucas (5th Cir.)

•   U.S. v. Cundiff (6th Cir.)

•   U.S. v. Bailey (8th Cir.)

•   U.S. v. Donovan (3rd Cir.)

•   U.S. v. Evans (M.D. Fla.)

•   U.S. v. Pozsgai (E.D. Pa.)

•   U.S. v. Fabian (N.D. Ind.)

•   U.S. v. Cory Bedford (E.D. Va.)

•   U.S. v. Cam (D. Or.)

•   U.S. v. Hubenka (D. Wy.)

•   U.S. v. Vierstra (D. Id.)

•   U.S. v. Johnson (D. Mass.) (jury)

•   Benjamin v. Douglas Ridge Rifle Club (D. Or.)

•   U.S. v. Brink (S.D. Tex.)

•   Stillwater of Crown Point Homeowner’s Association, Inc. v. Kovich (N.D. Ind.)
                              Homeowner’
                                                                                    549
                                                  550




Merits Decisions Finding No CWA Jurisdiction

• San Francisco Baykeeper v. Cargill (9th Cir.)

• U.S. v. Chevron Pipe Line Co. (N.D. Tex.)

• Simsbury-Avon Preservation v. Metacon Gun
  Club (D. Conn.)
What’s Ahead?
                551
           552




Guidance

				
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