Congressionally Requested Report on Comments Related to Effects of Jurisdictional Uncertainty on Clean Water Act Implementation April 30, 2009


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U.S. ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF INSPECTOR GENERAL

Catalyst for Improving the Environment

Special Report

Congressionally Requested Report
on Comments Related to Effects of
Jurisdictional Uncertainty on
Clean Water Act Implementation

Report No. 09-N-0149
April 30, 2009

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

OFFICE OF

INSPECTOR GENERAL

April 30, 2009

The Honorable James L. Oberstar
Chairman

Committee on Transportation and Infrastructure
U.S. House of Representatives
Washington, DC 20515

Dear Mr. Chairman:

This is in response to your request dated April 24, 2009, asking that the Office of
Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA) provide
information we have collected on the impact of the Rapanos case on Clean Water Act (CWA)
enforcement.

As discussed with your staff, the OIG is conducting an evaluation of the effectiveness of
EPA's identification of violations of Section 404 of the CWA that fall under its enforcement
authority. We are not evaluating the impacts of the Rapanos decision on EPA's enforcement of
the CWA. During our work, OIG evaluators visited EPA Headquarters and six regions, seven
U.S. Army Corps of Engineers' Districts, and six States. During those visits the topic of Rapanos
came up in some of our meetings. Although the subject was not the focus of our evaluation, the
comments were documented in our working papers. I am providing you a compilation of those
comments by organizational location. I caution that this information was not verified or
substantiated by us nor did we analyze its content or draw any conclusions from it.

Thank you for your interest in our work. Should you have any questions on this report,
please contact Wade T. Naiium, Assistant Inspector General for Program Evaluation, at
(202) 566-0827.

Sincerely,

Bill A. Roderick
Acting Inspector General

Attachment

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09-N-0149

Comments Related to Effects of Jurisdictional
Uncertainty on Clean Water Act Implementation

During our interviews, while conducting the wetlands enforcement evaluation, the U.S.
Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, and State wetlands
staff spoke about a variety of impacts to their programs caused by the Rapanos decision
(Rapanos v. United States). Included below are excerpts from our interviews, which we have
grouped by location. This information was not verified or substantiated by Office of Inspector
General (OIG). The OIG did not analyze its content or draw any conclusions from this
information.

EPA Headquarters

The following comments were from an interview with the Director, Office of Enforcement and
Compliance Assurance (OECA), Wetlands Enforcement Division, and his staff.

• Prior to the Rapanos decision OECA was relatively uninvolved in Section 404 cases.
However, more EPA Regions are now referring cases to Headquarters for review. Unlike
other Clean Water Act (CWA) programs, Headquarters cannot initiate a Section 404
case; instead, it just processes referrals from the EPA Regions. Follow-up for consent
decrees and other enforcement actions are handled at the regional level.

• Rapanos has been a major resource drain for the program, far more so than SWANCC
(Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers). It has
not necessitated a change in program direction.

• Rapanos has created a lot of uncertainty with regards to EPA's compliance and
enforcement activities. Processing enforcement cases where there is a jurisdictional issue
has become very difficult.

• There is a definitional issue that resulted from the Rapanos decision concerned with the
meaning of the words "Traditionally Navigable Water" and "Adjacency." The Office of
Wetlands, Oceans and Watersheds is running a workgroup, which also involves OECA,
the Council on Environmental Quality, the Army Corps of Engineers, the Office of
General Counsel, and other agencies, to address this issue. An Attorney, Water
Enforcement Division, noted that the Office of Management and Budget is trying to
restrict the definition of "traditionally navigable waters."

• What constitutes incidental fallback is now decided on a case-by-case basis, as it was in
1998 (i.e., EPA is revoking "Tulloch 2"). However, these definitional issues are
insignificant compared to current issues with jurisdictional determination brought about
by the Rapanos/Carabell decisions.

• Overall, CWA enforcement activities (for Sections 311 (oil spills), 402 (National
Pollutant Discharge Elimination System), and 404) have decreased since the Rapanos
ruling. An estimated total of 489 enforcement cases (Sections 311, 402, and 404
combined) have been affected such that formal enforcement was not pursued as a result
of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional
uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an
enforcement action.

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• OECA described the judicial referral process as "working well." It is rare for the
Department of Justice to send a case back to an EPA Region for administrative action. In
the wake of Rapanos, however, it has become "almost impossible" for EPA to refer a
case to the Department of Justice on "significant nexus" grounds. Lingering uncertainty
over the limits of Federal jurisdiction has made the Department of Justice reticent to
accept referrals wholly on these grounds.

• Staff also stated that the Department of Justice is "willing" to take CWA Section 404
cases, in principle, but they are often loathe to right now because of the lingering
jurisdictional uncertainties associated with Rapanos. However, the Regions erroneously
see the Department of Justice as "unwilling" to take any CWA Section 404 cases.

The following comments were from an interview with Office of Water, Office of Wetlands,
Oceans and Watersheds (OWOW) staff, including the Acting Chief, Wetlands Strategies and
State Programs Branch, and the Chief, Wetlands and Aquatic Resources Regulatory Branch.

• OWOW is working with the Office of Research and Development (ORD) on a number of
jurisdiction-related issues, including the use of scientific data to address the concepts of
stream flow and significant nexus such that relatively few analytical observations may be
applied across multiple jurisdictional cases in an effort to expedite the post -Rapanos
jurisdictional determination.

• The Federal regulations governing State program assumption under Section 404(c) of the
CWA have not been updated in the wake of Rapanos, though they are sufficiently broad
that the regulations, themselves, may not need updating. The Acting Chief, Wetlands
Strategies and State Programs Branch noted that OWOW also made an attempt to
develop guidance for the regions on State assumption, but that has not occurred. Instead,
EPA Headquarters provides the regions with a "script" for State/tribal assumption.
OWOW feels the Rapanos implementing guidance needs to be better defined before it
can revise the "script" to reflect Rapanos considerations. Typically, State assumption is a
separate guidance discussion from Rapanos.

• It has been difficult for EPA to craft jurisdictional determination guidance that is both
legal and usable for field staff. For instance, many streams have no U.S. Geological
Survey gauging data. In response, OWOW is partnering with ORD on a method that will
turn daily field observations into something that can serve as the basis for a defensible
decision about the stream's ephemerality. Ideally, one would need several years of biotic
observations before he/she could really determine whether a "significant nexus" exists.
Since the Army Corps of Engineers cannot conduct 130,000 jurisdictional determination
field visits, some intermediate approach is preferable.

• Currently, significant nexus calls are settled at the regional level. The region has 15 days
to look at the draft jurisdictional determination and most nexus calls are resolved within
this period. If EPA still has issues, it follows the procedure for "Special Cases"
established in the 1989 Memorandum of Agreement between EPA and the Army Corps
of Engineers. If the Regional Administrator classifies a jurisdictional determination as a
"special case," the Army Corps of Engineers must stand down for 10 days and defer the
jurisdictional determination to EPA. There have been nine special case requests, six of
which have been granted.

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The following comments were from an interview with two staff attorneys of the Office of
General Counsel (OGC), Water Law Office.

• The OGC is very involved with litigation associated with Army Corps of Engineers'
actions, especially the coordination of briefs between the two agencies. OGC helps the
Army Corps of Engineers assess the legal ramifications of asserting jurisdiction in certain
contexts in the post-Rapanos environment. Often, OGC advises the Army Corps of
Engineers on whether more information is needed to support a position in a particular
case.

• Traditional navigable waterways evade easy definition; even the Supreme Court has been
vague on the precise scope of traditional navigable waterways. Traditional navigable
waterways have arisen in multiple legal contexts over the years, not just in CWA
discussions. Many stakeholders find the Appendix D definition to be still too broad to
adequately serve the jurisdictional issues created by the Rapanos decision. The OGC
attorneys noted that there had been considerable discussion about the scope of traditional
navigable waterways in Fall 2007. Traditional navigable waterways continue to be an
issue in some "isolated (a)(3)" elevations.

• Adjacency was not addressed by the Supreme Court. Although there are 1-2 sentences
on it in the interim June 2007 guidance, it remains an imprecise term. However, OGC
staff is working with various program offices to create a follow-up to the June 2007
Rapanos guidance where adjacency, among other things, will be addressed. The real
debate involves the interpretation of one aspect of the "adjacency" definition:
"neighboring." This "neighboring" term was a cornerstone of the debate in the Carabell
case.

• There have been close to 50 post -Rapanos cases: a pretty significant increase over prior
case loads. Many cases have histories stretching back before the Rapanos ruling. The
Circuit courts have been deciding, with varying opinions, whether the Kennedy, Scalia or
both tests hold in establishing CWA jurisdiction.

• Although Rapanos has "trumped everything," OGC is engaged in some other Section
404-related work.

• The 11th Circuit Court of Appeals (Atlanta) recently held that only the Kennedy test
applies, even though the plurality's test is easier to apply. The 7th and 9th Circuits,
meanwhile, have used Kennedy's opinions. Both EPA and the Department of Justice
hope that either the plurality or Kennedy tests can be applied in Section 404 jurisdictional
decisions. Prior to Rapanos, the 5th Circuit had taken a more restrictive reading of CWA
jurisdiction.

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EPA Regions

Region 1

• According to the Acting Manager, Legal Enforcement Office, Office of Environmental
Stewardship, EPA Region 1, legal resources in EPA Region 1 are much tighter and have
been in decline, and the SWANCC and Rapanos fallouts have severely exacerbated this;
some cases have not yet been assigned to lawyers (cases need to be prioritized with other
environmental media as well).

¦ He said that EPA Region 1 has a strong team of jurisdiction experts.

¦ He said that EPA Region 1 recently held two sessions of Rapanos training
in mid-February 2009, and sent it out as a webinar for people throughout
the country.

Region 3

• The Associate Director, Environmental Assessment and Innovation Division, EPA
Region 3, said Region 3 resources have remained steady post -Rapanos and he is trying to
assure that the resource base remains steady.

¦ He said that today it is more difficult to prove a jurisdictional relationship
between wetlands and "Waters of the U.S" and more effort is needed to
put a case file together. EPA Region 3 considers itself lucky because it
has water; it is easy to follow the hydric soils and vegetation to establish a
connection to water.

¦ He said that in EPA Region 3, wetlands cases in the Fourth Circuit of
Appeals are based on the Wilson decision, which does not recognize
isolated waters as waters of the United States. Within Region 3,

Maryland, Virginia, and the lower half of West Virginia are located in the
Fourth Circuit of Appeals. The Fourth Circuit of Appeals decision to
follow Wilson has not affected wetlands resources that much because these
States regulate isolated waters under their State programs.

• The Stormwater Team Leader, Office of NPDES Permits and Enforcement, EPA Region
3 stated that the "Rapanos effect" has not affected the pursuit of joint (Section 402/404)
cases; it just takes more work to process them.

Region 4

• A staff member from Wetlands Enforcement Section, Clean Water Enforcement Branch,
EPA Region 4, said that Rapanos has raised the bar on establishing jurisdiction. Even if
Rapanos were to "go away" the likelihood exists that conducting jurisdictional
determinations will require more data and expertise than before.

¦ He has provided extensive training within Region 4 on Section 404 to
Section 402 staff and legal counsel. This training has also been shared
with the 10 Army Corps of Engineers Districts that work within Region 4.

• The Chief, Office of Water Legal Support, Office of Environmental Accountability, EPA
Region 4, said that generating the referrals to the Department of Justice is time

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consuming; it easily takes 1 full-time equivalent several months working full-time on the
case to prepare the referral package.

• The Chief, Clean Water Enforcement Branch (CWEB), EPA Region 4, stated that
Section 404 enforcement was combined with National Pollutant Discharge Elimination
System (NPDES) enforcement to form the CWEB in November 2008. This
recombination was spurred by Rapanos and the associated introduction of jurisdictional
issues into the NPDES program. Now, the Region's Section 402 staff have to start doing
jurisdictional determinations. In the past, it had been only typical for Section 404 staff to
do jurisdictional determinations.

Region 5

• The Branch Chief, Watersheds and Wetlands Branch, EPA Region 5 said that EPA
Region 5 has Vi full-time equivalents dedicated to reviewing Army Corps of Engineers
jurisdictional determinations, but is probably using well over 1 full-time equivalent, not
including training. He said that in a recent resources bid EPA Region 5 estimated that
two additional full-time equivalents would be necessary for enforcement in the post-
Rapanos world. The bid did not result in the requested resources.

¦ He said that, as a result of Rapanos, more work and resources are required
at all stages of processing an enforcement case.

¦ He said that EPA is now required to review certain jurisdictional calls
made by the Army Corps of Engineers where jurisdiction is in doubt and
EPA Region 5 has had to conduct more reviews than any other Region.

¦ He further stated that EPA Region 5 has recently overturned Army Corps
of Engineers jurisdictional determination decisions, using its authority
under the Civiletti Memorandum, because the agencies have disagreed
over their jurisdictional status. For example, EPA Region 5 overrode the
Army Corps of Engineers St. Paul District by exerting jurisdiction over
some isolated lakes in Minnesota and Wisconsin. These disagreements
often hinge on the agencies' understandings of proximity to traditionally
navigable waters.

¦ He said that a lot of EPA Region 5 surface waters that would be
considered Aquatic Resources of National Interest by EPA (e.g., fens,
bogs, dunes/swales) are seen as non-jurisdictional to the Army Corps of
Engineers due to Rapanos and SWANCC.

¦ He said that EPA's OECA has had to conduct CWA Jurisdiction webinars
for Section 402 and 311 personnel, since Rapanos has created new issues
for these programs.

¦ He said Region 5's Watersheds and Wetlands Branch management team
met with the Army Corps of Engineers St. Paul District to review which
cases the Region would accept from the Corps. This was done because the
effects of the Rapanos decision on EPA Region 5 enforcement cases were
significant in the short run (an increase in staffs' case review time). EPA
Region 5 has offered this review to two other Army Corps Districts, but as
of December 2008 there has been no date set for this encounter.

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¦ He said that, since Rapanos, the Department of Justice requires more
jurisdictional evidence than necessary for enforcement cases. Even after
EPA Region 5 has successfully established jurisdiction without a nexus
test, the Department of Justice requests a nexus justification anyway. The
Deputy Branch Chief, Watersheds and Wetlands Branch, EPA Region 5
added that, in their understanding, this is the case nationally. This may
also cause Statute of Limitations issues.

¦ He said that, in some cases, the Department of Justice has had to provide
assistance to EPA regional enforcement personnel by hiring consultants to
assist in the accumulation of jurisdictional evidence.

¦ He said that, even before an enforcement action is taken, it is now more
likely that enforcement cases will have to go to an administrative hearing
due to Rapanos.

• The Deputy Branch Chief, Watersheds and Wetlands Branch, EPA Region 5 supplied the
following numbers related to EPA's required reviews of Army Corps of Engineers
jurisdictional determinations. Of the 654 jurisdictional determinations, 206 were
significant nexus (i.e. Rapanos) calls, of which 28 were found to be non-jurisdictional,
and 450 isolated (i.e. SWANCC) calls, of which 449 were found to be non-jurisdictional.

¦ She said that, in addition to spending more time preparing a case, the
Rapanos significant nexus requirement puts EPA Region 5 in a situation
where it has to collect more intensive data.

• An Associate Regional Counsel, EPA Region 5 said that Regional Counsel is requiring
significant nexus determinations (and the associated resource demand) for all
enforcement cases, regardless of necessity, in anticipation that other Circuit Courts would
adopt the Seventh Circuit's stance that the significant nexus is the only acceptable
Rapanos test. Another Associate Regional Counsel, EPA Region 5 added that it has
become necessary to meet the toughest legal standard.

¦ He said that it appears as though Section 402 may be vulnerable to
jurisdictional issues as well. Another Associate Regional Counsel, EPA
Region 5 said that, due to the Rapanos decision, a conveyance between a
Section 402 discharge source and the receiving "Water of the U.S." has to
be verified. In other words, this is another nexus determination. Now,
when a Section 402 issue arises, EPA Region 5 has to walk the entire
nexus in order to establish the connection. This is difficult to do when
dealing with large distances through multiple properties and unfriendly
terrain.

¦ He said that there has been at least one instance in EPA Region 5 where it
could not process a Section 402 violation (which would have been
processed pre-Rapanos), because they could not establish a nexus.

¦ He said that there were jurisdictional issues for enforcement in most EPA
Region 5 States, where State-level wetlands enforcement is lacking.
Michigan is the only EPA Region 5 State with a decent enforcement
program.

• An Associate Regional Counsel EPA Region 5 said that, in combination with Rapanos,
the Environmental Appeal Board's Bricks decision (2003) is requiring that EPA "walk the
water" (i.e., field verify all applicable significant nexus connections) to establish

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significant nexus in all CWA cases, which can be very difficult to do without trespassing.
EPA Region 5 lost one case before the Environmental Appeal Board because no one
walked property, i.e., the wetland near Interstate 88 in Illinois.

¦ He said that the Rapanos ruling is downplaying the environmental
importance of smaller waters, such as headwater streams, since
jurisdiction only exists when a tie-in to prominent aquatic features is
established. Another Associate Regional Counsel, EPA Region 5 added
that the Rapanos jurisdiction standards depend on permanence of stream
flow, and there is currently no standard stream flow assessment
methodology.

¦ He said that Rapanos' biggest impact to jurisdiction is out in the arid West,
where it is comparatively difficult to prove significant nexus.

• The Associate Branch Chief, Office of Regional Counsel, EPA Region 5 said that the
increased case preparation time causes cases to get "stale" over time, which can adversely
affect enforcement outcome.

• The Section Chief, Office of Regional Counsel, EPA Region 5 said that all Section 402
issues are with Concentrated Animal Feeding Operations (CAFOs), where individuals are
announcing that they will not reapply for Section 402 permits because they feel that the
Rapanos decision has removed their CAFO from CWA jurisdiction.

• An Associate Regional Counsel, EPA Region 5 noted that differing evidentiary
requirements among Circuit Courts of Appeals is sometimes affecting enforcement
outcome: for instance, in one case Region 5's Office of Regional Counsel (ORC) had a
better argument for jurisdiction under the Scalia test than under the Kennedy test.
However, ORC will have to use the Kennedy test, because the case took place in the 7th
Circuit, where Kennedy is the accepted standard.

• A staff member of the Watersheds and Wetlands Branch, EPA Region 5 said that, after
Rapanos, EPA Region 5 had to re-evaluate jurisdictional determinations for pending
enforcement cases that were conducted prior to the Supreme Court decision.

• An attorney from the Office of Regional Counsel, EPA Region 5 said that it is hard to see
if Rapanos would have affected one of its cases, but it could have been more time
consuming to establish jurisdiction. However, EPA Region 5 did have to conduct a post-
SWANCC evaluation for this case to establish proximity to a tributary.

• An Enforcement Officer, Watersheds and Wetlands Branch and an attorney from the
Office of Regional Counsel, EPA Region 5 personnel said that it was necessary for the
federal government to use SWANCC arguments to substantiate jurisdiction in a case that
predated Rapanos. They added that the Army Corps of Engineers St. Paul District, may
also have performed a significant nexus analysis in this case.

• According to a staff member of the Watersheds and Wetlands Branch, EPA Region 5,
Rapanos-related jurisdictional issues were why the violators in three related cases "got
off so easily." He said that it was difficult to establish a nexus by measuring stream flow
in coal caverns.

• An Enforcement Officer, Watersheds and Wetlands Branch and an attorney from the
Office of Regional Counsel, EPA Region 5 said that in one case the violator's attorney
tried to argue against jurisdiction in the aftermath immediately following the Rapanos
decision, but was unsuccessful.

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Region 7

• A staff member of the Water Enforcement Branch, EPA Region 7 noted that some Army
Corps of Engineers Districts are referring fewer Section 404 cases post-Rapanos. She
speculated that Army Corps staff may be preoccupied with jurisdictional determinations
and permits.

¦ She stated that she believes there will be more informal enforcement
actions because of the Rapanos decision. She indicated that EPA Region
7 does not have sufficient resources to make jurisdictional determinations.

• A staff member of the Water Enforcement Branch, EPA Region 7 said that when EPA
Region 7's construction stormwater inspectors first visited the site of one case to follow-
up on a report of a possible Section 404 violation, the inspectors could only list a
potential nexus in their report. An attorney from the Office of Regional Counsel, EPA
Region 7 reported that she had to establish that the affected water was jurisdictional
before she could tell the inspector that there was a Section 404 violation at this site.

Region 8

• The Chief, Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 noted that
Region 8's Wetlands Unit still had about five full-time equivalents, the same amount of
staff as it had pr e-Rapanos Respite an increase in its responsibilities post -Rapanos, e.g., a
new requirement to collaborate with the Army Corps of Engineers on jurisdictional
determinations after June 2007.

¦ He stated that his unit has no guidance or approach for non-404
jurisdictional determinations, though they are trying to coordinate with
other Regions. He also indicated that some Corps office managers were
completely ignoring the June 2008 regulatory guidance letter on
preliminary jurisdictional determinations

• EPA Region 8 Water Technical Enforcement Program staff said the region has hired
three consultants to deal with Rapanos issues on cases in the Sioux Falls, South Dakota
area; in the absence of Rapanos, none of these consultants would have been necessary.

• The Acting Deputy Assistant Regional Administrator, EPA Region 8 estimated that it
takes EPA Region 8 as much as three times longer to process a case post -Rapanos. This
has also reportedly made things more difficult when dealing with the Department of
Justice.

• The Director, Water Technical Enforcement Program, EPA Region 8 added that a
significant nexus determination is necessary in almost every case. Only 17 percent of
Region 8's waters are perennial, so there are considerable amounts of nexus tie-ins.

¦ She noted that Region 8 is now walking the nexus for every applicable
CWA section (e.g., Section 311, 402 and 404 cases).

¦ She stated that, in some instances, EPA has to do a considerable amount of
extra work to support CWA jurisdiction for cases in litigation.

¦ She reported that a lot of the cases that were in progress at the time of the
Rapanos decision received milder settlements than they would have
otherwise because of the accompanying jurisdictional uncertainty.

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¦ She indicated that there were a few situations in EPA Region 8 where
violators, citing Rapanos, unsuccessfully tried to avoid fulfilling the terms
of their consent decrees.

¦ She stated that, just after Rapanos, there was a "logjam" at the Army
Corps of Engineers. EPA Region 8 was not receiving any new referrals
because the Army Corps was trying to figure out what it was going to do
with permits. Now that things have cleared out, EPA Region 8 has been
receiving a lot of Army Corps of Engineers referrals.

¦ She stated that the Rapanos decision was sufficiently oblique that the
resulting guidance requires a lot of analytical data, much of which does
not exist in the West.

¦ She noted that, relative to Section 402 cases, where there is at least some
proximity to a surface water, storage tanks can be quite far away from
"Waters of the United States." The Region often faces more challenges
with establishing nexus under OPA the Oil Pollution Act (OPA) than it
does under other Sections of the Clean Water Act.

An attorney, Legal Enforcement Program, EPA Region 8 indicated that some issues
related to the documentation of isolated waters (per the SWANCC decision) had
complicated EPA Region 8's referral to the Department of Justice.

Water Technical Enforcement staff indicated that the violator in one of its cases tried to
use Rapanos in its defense. Although, in the end, the arguments did not hold, the violator
did succeed in prolonging the case's penalty phase. EPA Region 8 had to reference data
on traditionally navigable waters and relatively permanent waters during the settlement
negotiations.

A Staff Attorney, Office of Regional Counsel, EPA Region 8 noted that EPA Region 8
has a lot of ephemeral streams, as well as streams which exhibit perennial flow relatively
close to the headwaters. However, after miles of irrigation and other supply demands,
these streams actually become more ephemeral further downstream. She indicated that
the EPA was currently grappling with whether flow could be used to establish a
significant nexus for certain waters. She described the "Badger Gulch" jurisdictional
determination that EPA Region 8 had elevated to EPA Headquarters. The case concerns
the contribution of flow considerations to a significant nexus decision.

¦ She added that, especially in western States, it is too difficult to break
jurisdictional determination calls down into isolated and significant nexus
calls.

A staff member from the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8
noted that EPA Region 8 has lots of borderline "ephemeral" features such as vernal pools
and playa lakes.

¦ She said that EPA Region 8 has issues with prairie potholes where the
Army Corps of Engineers will not accept the sub-surface connections.
The Army Corps of Engineers is unwilling to assert jurisdiction because of
a lack of site-specific evidence. However, EPA Region 8 feels that it is
possible to assert jurisdiction based on general patterns of prairie pothole
sub-surface connectivity.

¦ She stated that EPA Region 8 has lost a lot of surface waters to Rapanos.
The Chief, Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8

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followed with some additional information showing that the Army Corps
of Engineers Districts operating in EPA Region 8 (Sacramento, Omaha
and Albuquerque) failed to assert jurisdiction in nearly 72 percent of their
jurisdictional calls between June 2007 (the date that the initial Rapanos
guidance was released) and August 2008. SWANCC, not Rapanos, was
cited as the basis for the lack of federal jurisdiction on 88 percent of these
non-jurisdictional determination calls.

• Several staff from EPA Region 8 and the Army Corps of Engineers Omaha District noted
that the federal government must often reach a higher jurisdictional standard on Section
404 enforcement actions than it does on permitting decisions.

• Another staff member of the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8
noted that the Army Corps of Engineers has been in the habit of calling waters "isolated"
simply because there is no surface connection. However, some of these waters may still
have a sub-surface connection. Shallow sub-surface connections are important in some
contexts. There are consistent fluctuations between waterbodies in dune environments,
for instance. Sub-surface connections are pervasive in the San Luis Valley of Colorado.

• A staff member of the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8
reported that the States in EPA Region 8 have very weak wetlands programs. Another
staff member of the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 added
that State programs in Region 8 have little to no State or federal funding.

• The Deputy Regional Counsel, EPA Region 8, indicated that, because the Region has a
large amount of energy development, it has significant OPA issues. Nexus to surface
water bodies is critical in making jurisdictional determinations under OPA. He reported
that the Region's OPA program has found both a drop in spill reporting and a decrease in
the submission of Facility Response Plans since Rapanos. In the wake of Rapanos, OPA
jurisdiction has been especially in flux in Wyoming.

• A staff member of the Ecosystems, Wetlands, and Watersheds Unit, EPA Region 8 added
that the Corps is finding that its authority is expanding because its jurisdictional decisions
are affecting Clean Water Act Sections with which it had no previous involvement (e.g.,
Sections 311 and 402).

Army Corps of Engineers Districts

Rock Island

• The Chief, Enforcement Section, Regulatory Branch, Rock Island Army Corps of
Engineers District and the Chief, Regulatory Branch, Rock Island Army Corps of
Engineers District said Rapanos has not really changed their jurisdictional extent, just the
effort required to establish jurisdiction. The Rock Island District's workload has
increased as a result, but not significantly.

• They both said that Rapanos changed the effort required to establish jurisdiction. Rock
Island District workload has increased as a result, but not significantly.

• The Chief, Regulatory Branch, Army Corps of Engineers Rock Island District said that,
unlike out West, the potential for Rapanos issues would not keep the Rock Island District
from pursuing an enforcement action.

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¦ He said the Rock Island District is now experiencing difficulty
establishing jurisdiction in headwater areas and in areas where jurisdiction
was being asserted through upland-excavated ditches prior to Rapanos.

• Army Corps of Engineers Rock Island District Regulatory Branch personnel reported that
the SWANCC decision removed a considerable area from CW A jurisdiction. They stated
that it has many farmed wetlands and prairie potholes; SWANCC removed both of these
features from CWA jurisdiction.

Savannah

• The Chief, Northern Section, Regulatory Branch, Army Corps of Engineers Savannah
District said the Rapanos decision has affected the Savannah District in that it takes more
time to document jurisdictional determinations; and the review process for jurisdictional
determinations now goes up to the Division Chief for the Regulatory Branch.

¦ He said making jurisdictional determinations is especially more time
consuming for streams and isolated wetlands.

Jacksonville

• The Program Manager, Regulatory Division, Enforcement Branch, Army Corps of
Engineers Jacksonville District feels that the only difference after the Rapanos decision is
the need for more documentation, and she believes that this has somewhat abated as a
result of the reinstatement of the Preliminary Jurisdictional Determination; if a permit
applicant or violator agrees to accept all surface waters on a property as Section 404-
regulated waters and forego the Kennedy or Scalia tests, resolution is much faster. This
usually works out to everyone's benefit.

St. Paul

• The Enforcement Coordinator, Regulatory Branch, Army Corps of Engineers St. Paul
District reported that Rapanos has made enforcement cases much more difficult in that
they have to assemble a considerable amount of data to prove significant nexus. The St.
Paul District now goes beyond the 1989 Wetland Delineation Manual and brings hydric
soils into almost all of its cases.

¦ He stated that the St. Paul District has gone from using two expert
witnesses per case to 4, 5 or 6.

Detroit

The following comments were from an interview with Chief, Regulatory Branch, Army

Corps of Engineers Detroit District and his staff.

• Rapanos' main impact has been to increase the amount of time it takes the District to
process Section 404 violations.

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• EPA must reportedly limit its use of the Corps' jurisdictional language (e.g., the District
believes that this water is a "relatively permanent water" per Rapanos) to their
inspections. EPA cannot rely on the Corps' language when it conducts its own discovery.

• Rapanos has only forced EPA Region 5 to drop one case, reporting that Region 5 was
unable to take any action against the violator in Indiana because it was unsure whether it
had jurisdiction.

• Rapanos poses the biggest hurdle for waters away from the Great Lakes, especially if
multiple types of waters are present on the same piece of property.

Omaha

• Army Corps of Engineers Omaha District staff stated that although Rapanos made
jurisdictional determinations much more complicated (the form is eight pages long), the
Army Corps of Engineers has benefited from the re-institution of preliminary
jurisdictional determinations. Preliminary jurisdictional determinations are much
simpler, making the jurisdictional decision more like it was prQ-Rapanos. The Army
Corps of Engineers is currently re-training people on how to do jurisdictional
determinations for enforcement.

• The Regulatory Project Manager, South Dakota Regulatory Office, Army Corps of
Engineers Omaha District noted that the Army Corps of Engineers needs the "RPW"
(relatively permanent water) on enforcement jurisdictional determinations, whereas a
significant nexus analysis would suffice for a permitting jurisdictional determination.

• The Enforcement Coordinator, Army Corps of Engineers Omaha District stated that
Rapanos has made it more difficult to develop cases.

¦ He provided an example of how jurisdictional issues affect case referrals
to EPA. He cited an enforcement case which began as a permit
application: After its initial review, the Omaha District asked the applicant
to perform a wetlands delineation in an "incomplete application" letter.
Three months later, the Omaha District called the applicant to check up on
the application and found that work had already been done. The Omaha
District Project Manager wanted the violation sent to EPA Region 8 as a
flagrant violation. However, the Enforcement Coordinator thought that
the size of the violation was so small, probably qualifying under a
Nationwide Permit, that EPA Region 8 would not take it. Instead, he
decided to personally process the case, attempting to resolve it as an after-
the-fact Nationwide Permit 39 (for residential commercial and institutional
developments) provided the violator sent the required additional
information and mitigation plan. The additional information took 10
months to arrive, and there was no restoration plan — in fact, the developer
hired an attorney to dispute the Omaha District's claim that the site was
jurisdictional. He then threatened to send the case to EPA Region 8.
However, Region 8's Office of Regional Counsel said there could be
issues with jurisdiction. To bolster its claim, the Omaha District verified a
significant nexus (60 miles to next traditionally navigable waters; only
flows after rain; flows into a relatively permanent water). EPA Region 8
agreed with the Omaha District's call and the violator was notified of the

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agencies' decision to pursue the case. Now the applicant (who is the local
sheriff) is trying to appeal jurisdictional determination, but his appeal
might not work because EPA plans to take an enforcement action. All of
this has taken a lot of time.

¦ He stated that there are some areas in eastern Colorado, as well as near
Rapid City, South Dakota, where the Army Corps of Engineers would
have claimed jurisdiction in the past. It is now much more difficult for the
Army Corps of Engineers to claim jurisdiction.

¦ He noted that one of the Army Corps' biggest jurisdictional issues is tying
surface waters to the nearest traditionally navigable water, especially in
those instances where mudflow and alluvial fan deposits force surface
water flow underground. In one example, a violation was 60 miles away
from the nearest traditionally navigable water, and the connecting creek
went underground for 5 miles en route to the traditionally navigable water.
These jurisdictional challenges are a huge problem around Rapid City,
South Dakota, where rapid development and alluvial fans are common.

¦ He noted that there are also areas in Wyoming and Colorado where the
Army Corps of Engineers has had to a use significant nexus analysis
because there is only infrequent flood flow. In the past, everyone just
assumed that these areas were jurisdictional.

¦ He stated that there are related problems in the Salt Lake City area, where
the Sacramento District hired the Omaha District to conduct a large-scale
analysis of the mudflow deposits that are common to that area.

¦ He stated that the Omaha District has not taken two cases against large
developers because of jurisdictional uncertainty.

• A Counsel for the Army Corps of Engineers Omaha District stated that the last case the
Omaha District filed with the U.S. attorney was pulled back because of Rapanos. He
categorized the case as initially a "slam dunk," but then Rapanos came through and
created jurisdictional issues.

States

Michigan

• A staff member of the Michigan Department of Environmental Quality noted that the
U.S. Army Corps of Engineers has been unable to get the U.S. Department of Justice to
take criminal complaints in the wake of Rapanos.

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Appendix A

Distribution

Office of the Administrator

Acting Assistant Administrator for Enforcement and Compliance Assurance
Acting Assistant Administrator for Water

Acting Associate Administrator for Congressional and Intergovernmental Relations
Acting Associate Administrator for Public Affairs
Acting Inspector General

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