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Wetlands in a Nutshell: The Basics, Rapanos, State Initiatives, Tricks & Predictions

By May 5, 2016 No Comments

WETLANDS IN A NUTSHELL:  THE BASICS, RAPANOS, STATE INITIATIVES, TRICKS, AND PREDICTIONS
by
Craig A. Slater, Esq.

I.    INTRODUCTION

If you are buying undeveloped land for home or castle, plant or mall, or on a mountain or plain, and you plan on building on it, you have to worry about or at least consider how your plans may be impacted by the presence of federal and/or state jurisdictional wetlands.  You know this – wetlands can be a roadblock or expensive hurdle to overcome in developing property, no more so than in hydric-soil-rich Western New York.  If someone opposes your project, do you know the first stop sign they grab?  Wetlands.  If your opposition wants concessions on development, do you know what they point to?  Wetlands.  On this, I can guarantee you little in the wetlands permit process, but I can guarantee you that if wetlands are present within your project area, in small or large measure, the presence of those wetlands will absolutely impact the scope and nature of your project and will cost you time and money, in small or large measure.  Once you accept this truth and give up railing against the gods about unfair it is for someone to tell you what you can do with your property, the better you can strategically plan to reduce these impacts to your project.
This purpose of this article is to outline the basis elements of the federal and state programs regulating wetlands, the regulatory framework governing the issuance of wetlands permits, and the new and various recent changes in case law, policies, rules and programs that will affect getting wetlands permits in the future.  The article briefly discusses tricks and predictions.

II.    WETLANDS REGULATION BASICS
A. KEYS TO WETLANDS REGULATION

• Is the area a “wetland”?
• Is the wetland within State or Federal jurisdiction?
• Is the activity regulated?
• Could the activity be exempt?

B. FEDERAL WETLANDS

• Clean Water Act §404 (33 U.S.C. §1344)
• 33 CFR Parts 320-330
• Prohibitory Program
• Geographic Jurisdiction:  Federal jurisdiction over wetlands under the CWA is limited to the “waters of the United States”.  CWA §404.  By regulation, this includes wetlands, wetlands adjacent to waters of the U.S., and wetlands the degradation of which could affect interstate commerce or U.S. waters.  33 CFR §328.3(a).  Also see discussion below on the SWANNC case and progeny.
• Delineation: Soil, Hydrology, and Vegetation.  1987 Corps of Engineers Wetlands Delineation Manual and 33 CFR §328.3(b).
• There is no buffer for federal wetlands.
• Exemptions:  normal farming, farming roads, ditch and bridge maintenance.
• Nationwide Permits:  Nationwide permits are governed by 33 CFR Part 330 regulations, but are published, not codified, are deemed “permits by rule”, and are activity-based.  If the activity will be considered to have “minimal adverse environmental impacts”, such less than 1/10 acre (down from 1 acre) in size, boat ramps, navigation aids, utility lines, surveying, small bank stabilization, etc.  CWA §404(e)(1).
• Individual Permits:  must meet all regulatory requirements of 33 CFR Part 320 and 40 CFR Part 230; must submit the wetland delineation; must justify project purposes and need; and must identify all environmental impacts.  There is a notice and public comment period; NEPA applices; and EPA and USFW must comment.  NYSDEC water certification shall be necessary even if no state wetlands are present.
• General Policies Governing Permit Review:  Public interest (benefits balanced against detriments), public or private need, and practicable alternatives tests (33 CFR §320.4(a)) and AMC.  See, USEPA and USACOE Memorandum to the Field on Alternatives Analysis, November 11, 2004.
• Avoidance first, then Minimization, and only then Compensation (33 CFR 320.4(r)).
• EPA Veto:  CWA §404(c) grants to EPA the authority to veto any Corps permit where it can be shown that the grant of permit would cause an “unacceptable adverse effect” on municipal water, shellfish or fisheries, wildlife, or recreation areas.  Procedures related to the EPA veto are set out in 40 CFR Part 231.

C. STATE WETLANDS

• Environmental Conservation Law Article 24
• 6 NYCRR Parts 663 and 664.
• Prohibitory Program.
• Must be 12.4 acres or larger (ECL §24-0107(1) and 6 NYCRR §663.2(p)), unless…
• Unless the Commissioner decides that the wetlands are of “unusual local importance” (ECL §24-00301(1)).  ECL §24-0105(7) is referenced for the “unusual local importance” criteria that includes, among other things, whether the wetlands is a habitat for endangered or threatened species, provides flood and storm control, is a breeding ground for wildlife, is a recreation area, etc.  The same notice mapping provisions apply.
• Unless a municipality has enacted their own local laws to regulate wetlands.  ECL §24-0501.
• Delineation:  Vegetation only under ECL §24-0107(1), but DEC’s Freshwater Wetlands Delineation Manual, July 1995, applies soil, hydrology, and vegetation factors.
• 100 foot buffer (“adjacent areas”)
• Exemptions:  Same as federal.
• Classification of Wetlands:  Class I, which provide the most wetlands benefits, to Class IV, which provide the fewest benefits.
• Permit Criteria: Compatibility (3 tests – compatible with preservation, compatible with public health, and would result in no more than insubstantial degradation or loss of wetlands) and then weighing standards (benefits balanced against detriments – “clearly outweighs”, pressing economic or social need, practicable alternatives test, and avoidance and mitigation.  6 NYCRR §663.
• Avoidance first, then Minimization, and only then Compensation.

III.    SWANNC AND RAPANOS AND THE ISOLATED WETLANDS ISSUE
In 2001, the United States Supreme Court issued a landmark decision on the limits of U.S. jurisdiction (for the Army Corps of Engineers) under the Clean Water Act §404(a) over freshwater wetlands.  Solid Waste Agency of Northern Cook County v. U. S. ACOE, 531 U.S. 159, 121 S.Ct. 675 (2001).
In SWANCC, the Supreme Court noted that CWA §404(a) authorized the United States to regulate the discharge of any material within “navigable waters”, but interpreted the “navigable waters” jurisdiction to be limited to waters actually navigable, wetlands that actually abutted navigable waterways, or wetland areas where there was a significant nexus between wetlands and the navigable waterways.  The Supreme Court seemingly eliminated the “hydrological connection” test, replacing it with the “significant nexus” test, that is, CWA jurisdiction would only apply to areas where there is a “significant nexus” between the wetlands and the “navigable waters.”  Non-navigable, isolated, intrastate waters, therefore, were found to be outside of the Corps jurisdiction.
Draft wetlands regulatory language defining “waters of the United States” was drawn up in November of 2003 by the U.S. Army Corps of Engineers, although without any input from the EPA.  The draft language defines “waters of the United States” as territorial seas, traditional navigable waters, tributaries to navigable waters, and wetlands adjacent to those waters.  Tributaries not addressed in the existing regulation would be defined as “waters that are part of the system of surface waters and that contribute regular and recurring flow to traditional navigable waters of the United States” and also added perennial streams, intermittent streams, and tributary connections to the definition.
After 2004, the ACOE expressly stated that the holding in SWANCC did not change or alter their jurisdictional analysis at all.  It appears as though, however, that the Corps is diligently pursuing aggressive policy and guidance initiatives which would limit the intention of the decision in SWANCC and allow the Corps to exercise jurisdiction over remote, attenuated areas (or marginal wetland areas like kettle bogs, puddled areas, etc.).
In 2005, the U.S. Supreme Court granted certiorari to hear three key cases involving CWA jurisdiction over wetlands:  Rapanos v. U.S. (criminal conviction for filling in wetlands for development), Carabell v. ACOE (ACOE alleges that condo development could pollute Lake St. Clair, that connects Lake Huron and Lake Erie), and S.D. Warren Co. v. Maine Board of Environmental Protection (challenging denial of a permit to construct a hydroelectric dam for paper mill utility service).
The decisions in those three cases were expected to clarify the “distance” of the “significant nexus” test.  The decisions probably make things more confusing.
On June 19, 2006, the U.S. Supreme Court overruled both the Carabell and Rapanos decisions in Rapanos v. U.S., No. 04-1034.
The facts of the cases on appeal would seem to have primed the pump for a global resolution of federal wetlands jurisdiction.  In Carabell, the plaintiffs were denied a permit to deposit fill material in a wetland located on triangular parcel about 1 mile from Lake St. Claire.  A man-made drainage ditch ran along one side of the wetland separated from it by an impermeable man-made berm.  The ditch emptied into another ditch that eventually connected to a creek that emptied into the lake.  In Rapanos, the wetland area was connected to a man-made ditch which drained into a creek that emptied to a river that emptied into Lake Huron.  Primed? Yes. Fired?  No.  Alas, the opportunity for a global statement on the reach of wetlands jurisdiction under the CWA was squandered and portends greater confusion (and legal fees) for regulated parties.
The Rapanos decision was a split decision and, thus, the confusion.  Five justices (Roberts, Alito, Kennedy, Scalia, and Thomas) agreed that the 6th Circuit decision in favor of the Corps expansive view of it wetland jurisdiction should be vacated and remanded.    Justice Scalia wrote for majority, but Justice Kennedy, the swing vote, wrote a concurring opinion disagreeing with Scalia’s rationale and, thus, the confusion.
Scalia’s opinion was the developer’s dream.  He referred to the dictionary in finding that “navigable waters” meant 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.”  Scalia found that the phrase did not include “channels through which water flows intermittently or ephemerally or channels that periodically provide drainage for rainfall.”  Applying this definition to “ephemeral streams”, “wet meadows”, storm sewers, and “directional sheet flow during storm events,” drain tiles, man-made drainage ditches, and “dry arroyos in the middle of the desert”, stretches the term “waters of the United States”, Scalia says, “beyond parody”.  Amen.
Scalia had no problem juxtaposing the “significant nexus” test found in SWANCC and Riverside Bayview cases with his decision in Rapanos.  Both of those cases, he found, referenced the close connection (“significant nexus”) between waters and wetlands.  He found, however, that this close connection can only be found for “wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that there is no clear demarcation between “waters” and wetlands”, for only those wetlands can truly be “adjacent to” “navigable waters” that are covered by the Clean Water Act.
In order to establish CWA jurisdiction over wetlands, then, Scalia found two mandatory requirements:  the channel adjacent to the wetland must contain a “water of the United States” (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and the wetland must have “a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins.”   Amen again.
Justice Kennedy, on the other hand, applied SWANCC and Riverside Bayview criteria strictly and found that any “reasonable inference of ecologic interconnection” between wetland and navigable water is sufficient to support Corps jurisdiction.  He found that a “significant nexus” to navigable water is driven by the facts of each case, but can be established through chemical, physical or biological means.   “Mere hydrologic connection” or “mere adjaceny” to navigable water, Kennedy stated, is not the only criteria.  Finding an insufficient record before him to make the “significant nexus” determination, Kennedy votes to vacate and remand.
IV. STATE ISSUE INITIATIVES
A.    NEW JURIDICTIONAL LIMITS
The NYS Assembly recently passed a bill which would allow DEC to “fill the gap” in federal jurisdiction coverage potentially created by SWANCC decision by increasing DEC’s to include any wetlands >1 acre (DEC’s jurisdiction is now limited to wetlands greater than 12.4 acres).  S. 2081(Marcellino)/A. 2048(DiNapoli) passed in the Assembly 111 to 27 and now has considerable energy with Governor Spitzer’s election.

B.    STATE POLICY CHANGES
State NYSDEC policy changes are, by history and practice, more subtle, ephemeral and less codified.  Along with the proposed statutory jurisdictional changes in NYSDEC wetland authority mentioned above, there have been significant changes in how NYSDEC manages wetlands and projects.
• Mitigation Ratios are up.
• Mitigation for buffer impacts is required.
• Resistance to in-lieu of compensation.
• Aggressive, unsolicited field investigations in areas deemed to have development pressure.
• Aggressive re-mapping.
• Working with area environmental groups (Sierra Club, etc.).
• Applying both plant and Corps 3-legged delineation.
• Building design and application deliverables.

V.    RECOMMENDATIONS

A. DELINEATION

• Delineate Early
• The Use of Informal Delineations.
• Fighting the Technical Battle and Managing the Delineation Report

B. GROWING INTO TECHNICAL JURISDICTION

• Your Delineation is only good for 5 years.
• Your permit has a limited life.
• You can grow into jurisdiction.

C. FILING YOUR DELINEATION OR APPLICATION TOO EARLY

Upon filing, you lose a lot of flexibility in managing site and project details.

D. AVOID AND MINIMIZE

Asking to put 150 sardines in a 100-sardine box, while tempting, is not reasonable, will not advance the permit ball, and is, frankly, a waste of time and money.  While you must show palpable efforts at finding other locations for the project that do not have wetlands and efforts at trying to move your project around on the site to avoid wetlands in order to fulfill the “practicable alternatives” test, it is a waste of design money and project time to ask for the impossible.  Presume the agencies want total avoidance.  At least between client and lawyer, you need to have an idea early on about what kind of “hit” the project can take (number of acres, number of units, wetlands compensation packages, etc.) and still be financially possible.  That is not to say you should not proceed aggressively to get what you need, but act reasonably with thorough back up and support.

E. GETTING LOCAL MUNICIPAL SUPPORT

Local municipal and/or County support means more to the Federal and State government than you think.  This type of support makes a compelling public needs argument and works in other ways.

F. KNOW YOUR COMPENSATION NUMBERS

Well, what I mean by this, is that you need to know the Federal and State Mitigation Compensation Policies, use them as a check-off box to support your request, know your compensation ratios, and your costs.

Remember, DEC policy now is that you cannot “impose” a buffer upon a neighbor to create, mitigation wetlands.  For some, that will limit the availability of on-site and off-site mitigation.

G. PRE-APPLICATION SCOPING MEETINGS

Once you have front-loaded the science and the project and you are ready to get going, pre-application meetings, prior to filing, with the local municipality and the federal and state agencies is, in almost all cases, necessary, beneficial, and productive.  You may not like State and Federal policies on wetlands, but pre-application meetings are encouraged by State and Federal policy and you should avail yourself of them.  You can informally layout your project and get vital feedback on your proposals.  In many cases, the agencies will be quite specific on exactly what they may or may not find acceptable.

BUT, LISTEN during your meeting.  A pre-application meeting is certainly a time to “advocate” your project, but it is also the time to listen to the regulators.  Try to respond.  Try to make the changes you can.  Try to explain why you cannot do certain things and then provide your support and analysis.  Discuss their concerns, consider them, consider if you can accommodate them, and if you can’t, make your argument/case in support of your application.

H. CAREFUL USE OF POLITICAL SUPPORT

When you think of picking up a phone to request your State of Federal elected official for support for a project or to get involved with the agency to “hurry things up”, think again.  It’s not that you shouldn’t do it, it’s that you need to be careful, in fact, judicious about it.  Think of this tool like a buggy whip – it may get the horse moving or it may get the horse mad, but in either case, you probably have an annoyed horse that you may someday see again.  I have used it effectively in certain cases, but in a very deferential manner – I advise all of what we are doing – but the use and timing of political support is as important as having it.  So be careful, assess personalities, evaluate the best timing, and discuss with regulatory staff in advance if you can.

I.    FRONT LOAD WETLANDS

I have already said this, but wetlands are a good deal stopper for agencies and opposition.  View it that way.  It is not just a caution sign; it’s a potential stop sign.  It is also a huge cost and time delay driver.  Front load the issues now.  Don’t spend a lot of money on the project, file your applications, and think that somehow the wetlands will just go away.  You will be setting yourself up to be very mad and frustrated and your project will end up in jeopardy.

J.    KNOW AND MANAGE YOUR SCIENCE UP FRONT

I have also said this too before.  The only way to truly manage your science at all is to do it before the project is public, before agency review.  Once the project and your project science become public, the consultant’s ability to argue away the science will be fenced in.  So, if you haven’t done your homework, aren’t prepared to show you homework, and don’t understand where you want to end up, you will get an F on your application.

K.    AVOID AND MINIMIZE

Yes, I know, I have already discussed this, but it is important enough to mention twice.

• Get a wetlands specialist now and front load your wetlands analysis and alternatives.
• Sit down with your project engineer now.  Spin your project around, think like a regulator, and try to make the project happen without impacting wetlands.  Show your homework!
• Get a real estate agent now.  Make sure your paper trail on practicable alternatives is complete.

VI.    TRICKS:  THE USE OF REGULATORY EXEMPTIONS

A. THE DITCH MAINTENANCE EXEMPTION

A valuable tool for controlling drainage.  CWA, 33 U.S.C. §1344(f)(1).

B. THE AGRICULTURAL EXEMPTION

A most valuable tool.  CWA, 33 U.S.C. §1344(f)(1)(A), (C), and (E)

C. 12.4 ACRE DEC JURISDICTION LIMITATION

Remember– it will go away.  Act now.

D. GRANDFATHERING

Believe it or not – this can still be used on occasion.  Always think about it in the beginning.  33 CFR §330.3 and ECL §24-1305.
VII.    TIPS
• Delineate early/front-load the wetlands issues.
• Know and manage the science now.
• The Use of Informal Delineations.
• Fighting the Technical Battle and Managing the Delineation Report.
• Your delineation is only good for 5 years.
• Your permit has a limited life.
• You can grow into jurisdiction.
• Avoid and minimize
• Know your mitigation numbers.
• Know and manage your jurisdiction issues.
• The importance of pre-application meetings.