SEP 21-06

10:08

From:HUNTON & YllLLlAMS

Greg, reflecting on our phone call the other day, here are my further thoughts for your consideration:
1. OHWM. You said it was no longer a "super-indicator," which suggests that it may still be an indicator of something. Our view is that OHWM, properly applied, can be an indicator in determining whether a given feature is actually a waterbody -- i.e., properly applied, it will tell you whether you are in a channel. But, as discussed previously, the presence of an OHWM can not be an indicator of whether a channel has a significant nexus to traditional navigable waters because all linear waterbodies have an OHWM (regardless of their proximity to TNW or flow, etc.). So OHWM is "necessary, but not sufficient" for the jurisdictional inquiry. It is necessary to assure that you are actually in a waterbody, but a second step is needed to determine significant nexus. NOTE: OHWM has not been properly applied in the field (see GAO report), but I get the sense that the Corps recognizes this, and wants to apply it properly from now on. This is something you should ask them about, i.e., how will they use OHWM and make sure they avoid those outcomes ihe GAO found (or the ones in the Ada County, Idaho jurisdictional delineation I sent you).

2. You asked about how the guidance should characterize the proof that is necessary to establish jurisdiction over waters that are not being treated categorically -- i.e., nonnavigable tributaries that do not have a continuous flow and any associated wetland. These are the waters for which significant nexus must be shown. Kennedy says:

When the Corps seeks to regulate wetlands adjacent to navigablein-fa ct waters, it may rely on adjacency to establish its jurisdiction. [Note to Greg: These are the Riverside Bayview waters.] Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries. Given the potential overbreadth of the Corps' regulations, this showing is necessary to avoid unreasonable applications of the statute. Where an adequate nexus is established for a particular wetland, it may be permissible, as a matter of administrative convenience or necessity, to presume covered status for other comparable wetland in the region.
126 S. Ct. at 2249.

Translating this into agency practice, Kennedy's opinion, the APA, and general case law would say the burden lies with the Corps to document the facts that establish a significant nexus to traditional navigabie waters. Kennedy says "must establish significant nexus" case-by-case, and that "this showing is necessary to avoid unreasonable applications of the statute," and he criticized the Carabell record for its reliance on speculation. "The conditional language in these assessments -- 'potential ability,' 'possible flooding' -- could suggest an undue degree of speculation, and a reviewing court must identify substantial evidence supporting the Corps' claims." Kennedy at 2251. To translate that into nonlegalese, I think you would say something like the Corps must document facts in the record that show that the waterbody under consideration has a significant nexus to traditional navigable waters.

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'SEP-21-06

IO:O8

From:HUNTON & WILLIAMS

On the features that are generally considered nonjurisdictional, the description of the 3. treatment of ditches suggests that there may be a danger that, even though the guidance says they are generally nonjurisdictional, there are so many caveats and limitations and qualifiers on that general statement that it will not be operative in many cases. You should ask for explanations of those qualifiers and whether the qualifiers eat the rule -- i.e.. if they say small washes located at the upper reaches of the tributary system and characterized by short duration and infrequent and low volume are generally out, do they expect that, as applied in the field. this will mean that most small washes will be out, or will most small washes be in? Will most small washes at the upper reaches be out, or in? Are you really creating a "bound"?
4. On the "similarly situated" issue: Based on how you were describing it, it sounds as if the agencies are thinking they could find significant nexus if a waterbody, either alone or in combination with other similarly situated waterbodies, significantly affects the chemical, physical, and biological integrity of traditional navigable waters. I have several concerns about this foimulation.

Kennedy mentions the similarly situated idea twice, but both passages are limited to wetlands. He does not apply the similarly situated concept to tribitaries. Consistent with SWANCC and Riverside Bayview and with the need to give the term 'navigable' some meaning, the Corps' jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense. The required nexus must be assessed in terms of the statute's goals and pulposes. Congress enacted the law to 'restore and maintain the chemical, physical, and biological integrity of the Nation's waters,' and it pursued that objective by restricting dumping and filling in 'navigable waters.' With respect to wetlands, the rationale for CWA regulation is, as the Colps has recognized, that wetlands can perform critical functions related to the integrity of other waters -- functions such as pollutant trapping. flood control, and runoff storage. Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase 'navigable waters,' if the wetland, either alone or in combination with similarly situated lands in the region. significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.' When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term 'navigable waters.' Kennedy at 2248.
Absent more spec~jic regulations, however, the Corps must establish a significant nexus case-by case when it seeks to regulate wetlands based on adjacency to non-navigable tributaries. . . . Where an adequate nexus is establishedfor aparricular wetland, it

may be permissible, as a matter of administrative convenience or

necessiry, to presume covered status for other comparable wetlands in the region.
Kennedy at 2249 (emphasis added). The first passage lays out the broad legal principle of the CWA. But it is then followed by three forceful paragraphs about why the Corps' present regulations are inadequate, culminating in the second passage quoted above. The result is a two-prong analysis based on his analysis of the validity of the present regulations: (I) the present regulations are sufficient for the Corps to assert jurisdiction categorically over traditional navigable waters and wetlands adjacent to traditional navigable waters (id. at 2248); and (2) "absent more specific regulations," the Corps must make a case-by-case significant nexus determination for other wetlands (id. at 2249). But, recognizing that the case-by-case analysis will have workload implications. he offers the "similarly situated idea to provide some relief -- is., where the significant nexus is established for a particular wetland, i t may be permissible . . . to presume covered status for other comparable wetlands in the region. This suggests a two-step process: First, the Corps must establish that a particular wetland has the requisite nexus case-by-case, then, second, if the Corps determined that another wetland in the region had the same situation, it could assert jurisdiction over the second wetland based on its siinilarity to the first -- i.e., that the first and second wetland have the same significant effects on the chemical, physical and biological integrity of other covered waters more readily understood as navigable. The idea is NOT that you add up all the wetlands in the region and see if cumulatively they have a significant effect on traditional navigable waters. (That approach would vitiate Kennedy's case-by-case requirement, and the answer to that question will probably always be "yes.") Kennedy's similarly situated idea is that if you have already determined that one wetland has a significant nexus to traditional navigable waters, then you may presume that a second similarly situated wetland (similar in characteristics and location in the watershed) will also have the requisite significant nexus. How will the significant nexus factors work? Does the field investigator have ro make a 5. positive finding that all ecological factors are presenl? Or does the presence of one ecological factor establish significant nexus? If all are present, does that establish significant nexus? What is the relationship between the ecological factors and the hydrological factors? What if all ecological factors are present, but the feature is 100 miles from the nearest traditional navigable water? You should ask for a run-through using that Ada County OHWM. Are there any bright lines?
6.

Significant nexus factors:

a. Potential to carry pollutants to traditional navigable waters: Kennedy wants actual substantial evidence; references to "potential" and "possible" effects are not enough to establish significant nexus. (See his discussion of the Carabell record at 126 S. Ct. at 2251). So this should be "evidence that pollutants entering the waterbody at this location are transported to traditional navigable water," not potential, not capacity, not speculation, but actual documented experience.

SEP-21-06

lO:D9

From:HUNTON & WILLIAMS

Aquatic habitat: What is aquatic habitat? If it is habitat associated with aquatic b. features. then all waterbodies are likely to have it. This is tautological. Trapping and filtering pollutants: Are there any waterbodies that do not trap and c. filter pollutants? d. Storing storm water: Same.