Upload
others
View
0
Download
0
Embed Size (px)
Citation preview
ISSUE 3 JANUARY 2016
�1
THE WATERLOGUESRecent Developments in the Wetlands Regulatory Program
Wetlands Professional Services www.wetlandsprofessional.com
Continued on Page 2www.wetlandsprofessional.com
!There were two important changes in 2015 that impacted wetlands in the greater Houston area and east Texas.
First, the EPA and Corps of Engineers issued new regulations, which expanded the wetlands regulatory program. Second, a federal court in Houston narrowly interpreted the boundaries of Clean Water Act jurisdiction, which reduced the reach of wetlands regulations.
Since its inception almost forty years ago, the federal wetlands regulatory program has been in a constant state of change due to ongoing disputes over property rights, interagency conRlicts, political pressure and federal court decisions. Now this program is even more unsettled.
NEW REGULATIONS FAIL TO BE IMPLEMENTED:
On August 28, 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) imposed new regulations that redeRine and expand the boundaries of federal regulatory jurisdiction over wetlands and waters of the United States.
Soon after these new regulations went into effect, a federal Appeals Court issued an order, which “stayed” or halted the EPA and Corps from implementing their new regulations, nationwide, pending further action of the court.
If these new regulations were still in effect, the boundaries of Clean Water Act jurisdiction would have greatly expanded and put a big chill on many development and infrastructure projects throughout America.
Below: Isolated Wetlands -‐ center of controversy over federal regulatory authority
If there is a conRlict between federal regulations and relevant court decisions regarding wetlands, ditches and streams, then the applicable language of relevant federal court decisions is the controlling legal authority to determine the correct boundaries of Clean Water Act jurisdiction.
ISSUE 3 JANUARY 2016
�2
!Numerous lawsuits have been Riled against the new regulations in different federal courts across America. These lawsuits are slowly proceeding through a complex legal quagmire that will take years to resolve. Eventually, the new regulations may be modiRied, reissued or abandoned altogether.
Until such time as the court lifts the stay, the EPA and Corps of Engineers have returned to using their old rules that were previously in effect to administer the wetlands regulatory program.
Wetlands jurisdictional determinations under the old rules are narrower than the new regulations. This present situation may offer some relief to landowners who choose to document the regulatory status of their property while the old rules remain in effect.
RELEVANT COURT DECISIONS
Another major legal development occurred in 2015. A federal district court issued a ruling in a long-‐running EPA lawsuit against a Houston area developer – Thomas Lipar of LGI Development.
On August 30, 2015, federal Judge Lynn Hughes in the Southern District of Texas (Houston) issued a ruling in the case of United States of America (EPA) vs. Lipar (LGI). This case involved alleged unauthorized discharges of Rill material into wetlands at two projects located in Montgomery County – Lake Windcrest and Benders Landing Estates.
To understand the ramiRications of Lipar we must Rirst explain some background about regulatory practices and relevant court decisions.
After the U.S. Supreme Court’s SWANCC decision in 2001, the EPA/Corps no longer had jurisdiction over isolated wetlands. However, regulatory staff opposed and resisted SWANCC and continued to improperly assert regulatory authority over isolated wetlands.
Continued on Page 3www.wetlandsprofessional.com
“……Waters of the United States has been interpreted to include more than waters that are navigable-in-fact. It, however, does not include every water or patch of mud tangentially connected to a navigable water. Nor does its reach extend to the impossibly broad and distant outer limit of the vogue interpretation of Congress’s power to regulate commerce…..”
Judge Lynn Hughes
Below: Intermittent Stream -‐ not a continuous surface-‐water hydrology connection, does not establish Clean Water Act jurisdiction
ISSUE 3 JANUARY 2016
�3
Continued on Page 4www.wetlandsprofessional.com
!For two years following SWANCC there were no ofRicial procedures for applying relevant court decisions, so regulatory staff was not required to apply the rulings of SWANCC. This caused numerous legal disputes.
After much controversy, the EPA and Corps issued a guidance document in 2003 (Joint Memorandum) with procedures and guidelines for applying relevant court decisions when determining Clean Water Act jurisdiction. This Joint Memorandum is still in effect.
If there is a conRlict between federal regulations and federal court decisions regarding wetlands, ditches and streams, then the applicable language of relevant court decisions is the controlling legal authority to determine the boundaries of Clean Water Act jurisdiction.
Relevant court decisions must be considered when regulatory staff (or an independent expert) undertakes the task of properly determining the boundaries of Clean Water Act jurisdiction on raw land.
The Lipar case
Judge Lynn Hughes ruled in favor of Lipar by Rinding that the wetlands in question were not-‐subject to Clean Water Act jurisdiction.
Judge Hughes wrote: “Waters of the United States has been interpreted to include more than waters that are navigable-in-fact. It, however, does not include every water or patch of mud tangentially connected to a navigable water. Nor does its reach extend to the impossibly broad and distant outer limit of the vogue interpretation of Congress’s power to regulate commerce. ”
Prior to construction, I (Jim Coody PE) prepared a wetlands report for Lipar, which documented with facts and evidence that no jurisdictional wetlands existed on the site, and sealed this document as a
Above: Shallow inland tributary – does not meet the deRinition of “Traditional Navigable Waters”
Below: Isolated pond – not regulated under the Clean Water Act
ISSUE 3 JANUARY 2016
�4
Continued on Page 5www.wetlandsprofessional.com
Professional Engineer. When the EPA began its investigation it ignored this wetlands report.
The EPA refused to answer our requests for information and proceeded with enforcement action; it issued multiple Cease & Desist orders and Riled a lawsuit.
The EPA conducted extensive investigations of the site and surrounding area but was unable to produce evidence showing that the wetlands in question were hydrologically connected to navigable waters, or otherwise had a “signiRicant nexus” to navigable waters.
For ten years, the EPA conducted its investigations, enforcement actions and litigation activities in a perverse and obstinate manner, which Judge Hughes described as “intractable, uncooperative and deRiant.” That is why the court sanctioned the EPA and ordered it to pay Lipar’s attorney fees.
Pertinent ?indings from the Lipar decision:
• When dealing with isolated wetlands, the agencies must employ one of two tests from the Supreme Court’s Rapanos decision; 1) a wetland must have a permanent, direct, abutting and continuous surface-water connection to relatively permanent waters of the United States, or 2) a wetland must possess a “significant nexus” to traditional navigable waters.
• The isolated wetlands in Lipar did not meet either test.
• Wetlands with only an intermittent and physically remote hydrologic connection lack the necessary connection to establish Clean Water Act jurisdiction.
• EPA failed to prove that the isolated wetlands in Lipar “significantly affects” the chemical, biological and physical integrity of Spring Creek and other waters farther downstream.
• EPA’s “significant nexus” analysis and regression to downstream waters was too tenuous, not based on physical evidence, and amounted to nothing more than “conclusory legal generalizations.”
• EPA’s definition of navigable waters was too broad because it included small shallow inland streams that may only be navigable for recreational use by canoes and kayaks.
Lipar demonstrates that it is very difRicult for the agencies to prove a violation of the Clean Water Act jurisdiction in cases that involve isolated wetlands.
The Lipar decision is based on the EPA/Corps old rules that were in effect at the time of the alleged violations. These old rules have recently been reactivated after a federal court stayed the new regulations.
Lipar is applicable relevant case law for projects located within the region of the federal district court, Southern District of Texas -‐ which includes the greater Houston area and most of east Texas.
ISSUE 3 JANUARY 2016
�5
The Rindings in Lipar should be carefully applied when determining the boundaries of Clean Water Act jurisdiction.
Landowners should maintain their property as allowed under law to remedy poor drainage conditions, which can create low quality emergent wetlands.
During this current period when the new regulations have been temporarily halted by a federal court, landowners may obtain more favorable wetlands determinations by documenting the regulatory status of their property under the old rules and in accordance with the Lipar decision.
The federal wetlands regulatory program is very unsettled and fraught with delays. We will continue to monitor this situation and provide updates in future editions of The WaterLogues. Please contact us for more information.
Jim Coody, PE
Jim Coody is a Professional Engineer with over 25 years of experience in wetlands and related environmental regulatory issues that affect land-use permits and approvals. Our clients include owners of large and small tracts of land, developers, brokers, municipal utility districts, school districts, businesses and institutions. Areas of specialization include analysis and documentation of wetlands, streams, ditches and ponds; endangered and threatened species, stormwater drainage, maintenance of raw land to re-establish good drainage, coordination with government agencies, and project management.
We specialize in helping landowners plan, design and manage development projects to avoid impacts to jurisdictional wetlands.
PO Box 842462, Houston, Texas 77284 Phone 713-‐983-‐6635 Jim Coody, President
Mikal Maxim, VP Marketing www.wetlandsprofessional.com