November 14, 2014 U.S. Army Corps of Engineers (“Corps”) and

November 14, 2014
U.S. Army Corps of Engineers (“Corps”) and
Environmental Protection Agency (“EPA”)
Docket ID No. EPA-HQ-OW-2011-0880
Submitted by email: [email protected]
RE: Proposed Rule Defining “Waters of the United States”
under the Clean Water Act
Dear Corps and EPA:
We are submitting the following comments on behalf of the
Everglades Law Center and Center for Biological Diversity
regarding the proposed rule defining “waters of the United States”
under the Clean Water Act.
We would like to take this opportunity to emphasize the importance
of rulemaking to protect geographically isolated wetlands,
particularly those found in Florida. The protection of these
wetlands both categorically and on a case-specific basis is critical in
conserving Florida’s biodiversity and endangered species.
The Clean Water Act
In enacting the Clean Water Act in 1972, Congress sought “to
restore and maintain the chemical, physical, and biological integrity
of the Nation’s waters.”1 The statute provides that “the discharge of
any pollutant by any person shall be unlawful.”2 The Act defines
“the discharge of a pollutant” as “any addition of any pollutant to
navigable waters from any point source.”3 The term “pollutant”
includes, among other things, “dredged spoil,…rock, sand, [and]
cellar dirt.”4 Under Section 404 of the Clean Water Act, the
Secretary of the Army, acting through the U.S. Army Corps of
Engineers, may “issue permits…for the discharge of dredged or fill
material into the navigable waters at specified disposal sites.”5
“Navigable waters” is defined as “the waters of the United States,
33 U.S.C. § 1251(a).
Id. § 1311(a).
3 Id. § 1362(12).
4 Id. § 1362(6).
5 Id. § 1344.
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including the territorial seas.”6 Over the past several decades, EPA and the Corps
have interpreted the term “waters of the United States” broadly to include not
only waters that are navigable in the literal sense of the word.7 Through this
proposed rulemaking, the Corps and EPA seek to define “waters of the United
States” following the U.S. Supreme Court decisions in U.S. v. Riverside Bayview
Homes, 474 U.S. 121 (1985); Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v.
United States, 547 U.S. 715 (2006).8
The Proposed Rule
The proposed rule seeks to define “waters of the United States” as:
(1) All waters which are currently used, were used in the past, or may be
susceptible to use in interstate or foreign commerce, including all waters
which are subject to the ebb and flow of the tide;
(2) All interstate waters, including interstate wetlands;
(3) The territorial seas;
(4) All impoundments of waters identified in paragraphs (a)(1) through (3)
and (5) of this section;
(5) All tributaries of waters identified in paragraphs (a)(1) through (4) of
this section;
(6) All waters, including wetlands, adjacent to a water identified in
paragraphs (a)(1) through (5) of this section; and
(7) “on a case specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the
same region, have a significant nexus to a water” identified in
paragraphs (a)(1) through (3) of this section.9
The proposed rule defines “significant nexus” as follows:
Significant nexus. The term significant nexus means that a water,
including wetlands, either alone or in combination with other similarly
Id. § 1362(7).
See 33 C.F.R. § 328.3 (2004).
8 U.S. Army Corps of Engineers, Department of the Army, Department of Defense; and
Environmental Protection Agency, Definition of “Waters of the United States” Under the Clean
Water Act, Proposed Rule, 79 Fed. Reg. 22188, 22263 (April 21, 2014).
9 Id. (emphasis added).
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situated waters in the region (i.e., the watershed that drains to the nearest
water identified in paragraphs (a)(1) through (3) of this section),
significantly affects the chemical, physical, or biological integrity of a
water identified in paragraphs (a)(1) through (3) of this section. For an
effect to be significant, it must be more than speculative or insubstantial.
Other waters, including wetlands, are similarly situated when they
perform similar functions and are located sufficiently close together or
sufficiently close to a ‘‘water of the United States’’ so that they can be
evaluated as a single landscape unit with regard to their effect on the
chemical, physical, or biological integrity of a water identified in
paragraphs (a)(1) through (3) of this section.
It appears the proposed rule’s “significant nexus” requirement seeks to clarify
recent Supreme Court decisions and implement the standard set forth in Justice
Kennedy’s concurring opinion in Rapanos. In Rapanos, a four-Justice plurality
interpreted the term “waters of the United States” as covering “relatively
permanent, standing or continuously flowing bodies of water” that are connected
to traditional navigable waters, and wetlands with a “continuous surface
connection” to such water bodies.10 Justice Kennedy in his concurrence
concluded “to constitute ‘navigable waters’ under the Act, a water or wetland
must possess a ‘significant nexus’ to waters that are or were navigable in fact or
that could reasonably be so made.”11 According to Kennedy a significant nexus
occurs if the wetlands “either alone or in combination with similarly situated
[wet]lands in the region, significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood as ‘navigable.”12 Such a
relationship must be more than “speculative or insubstantial.”13 Appellate courts
have differed as to what standard governs, although no Circuit has ruled that only
the plurality’s standard applies.14 The Eleventh Circuit has ruled that only
Kennedy’s “substantial nexus” standard determines jurisdiction.15
Florida’s Small, Geographically Isolated Wetlands and the Case for
Their Protection.
Wetlands are a dominant feature in Florida’s landscape and represent a greater
percentage of the land surface in Florida than in any other state in the
conterminous United States.16 There are an estimated 11.4 million acres of
wetlands, occupying 29% of the area of the State.17 Freshwater wetlands make up
Rapanos, 547 U.S. at 739, 742.
Id. at 759.
12 Id. at 780.
13 Id.
14 79 Fed. Reg. 22252.
15 Id. (citing United States v. Robinson, 505 F.3d 1208 (11th Cir. 2007), cert. denied sub nom
United States v. McWane and McWane v. United States, 555 U.S. 1045 (2008)).
16 Haag, K.H. and Lee, T.M. 2010. Hydrology and Ecology of Freshwater Wetlands in Central
Florida-A Primer, U.S. Geological Survey Circular 1342, 138 p.
17 Id.
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90% of Florida’s wetlands.18
These wetlands include several types of “geographically isolated wetlands.” Many
of these wetlands are found in North and Central Florida, the latter being within
or in close proximity to the headwaters of the Everglades. These wetlands lack a
surface outlet to downstream rivers and bays.19 The word “isolated” is a bit of a
misnomer, as “it is clear from the ecological literature that interactions between
such wetlands and other waters can occur.”20 These interactions include groundwater connections, intermittent surface-water connections among isolated
wetlands as well as surface water connections with other waters such as streams
during high water events.21 Isolated wetlands can also be connected to each other
and to other waters through the movements of plants and animals.22 Birds may
rely on these wetlands for food, shelter, nesting, and rearing, or when there are
poor habitat conditions elsewhere.23 Connections can be further made through
the dispersal of seeds and through intermittent flooding during which fish from
more traditionally navigable waters can enter these wetlands through ditches.24
These wetlands and their connections with other waters often fall within a
“continuum” between complete isolation and connectivity.25
As Semlitsch and Bodie (1999) argue, small wetlands are crucial for maintaining
regional biodiversity in a number of plant, invertebrate, and vertebrate taxa (e.g.
amphibians).26 A consequence of losing these wetlands lies in potential changes
to the metapopulation dynamics of the remaining wetlands.27 The consequences
could be a reduction in the number or density of individuals dispersing and an
increase in dispersal distances among wetlands.28 A reduction in wetland density
can decrease the probability that a population can be “rescued” from extinction
by a neighboring source population because of lower numbers of available
recruits and greater distances between wetlands.29 Remaining wetlands could
face increased probabilities of population extinctions.30
Florida has a number of “other waters,” including geographically isolated
wetlands that have a significant nexus with traditionally navigable waters and
deserve protection under the proposed rule. These wetlands include Carolina
Bays, which are ponded depressional wetlands that occur in Northern Florida. As
Id.
Leibowitz, S. 2003. Isolated wetlands and their functions: an ecological perspective. Wetlands
13:517-531.
20 Id. at 518.
21 Id. at 518-19.
22 Id. at 519.
23 Id.
24 Id.
25 Id.
26 Semlitsch, R.D. and J.R. Bodie. 1999. Are small, isolated wetlands expendable? Conservation
Biology 12:1129-1133.
27 Id. at 1131.
28 Id.
29 Id. at 1131-32.
30 Id. at 1132.
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the Corps and EPA explain in their proposed rulemaking, these bays have shown
connections to shallow groundwater and are often in close proximity to each
other or to open waters, providing the potential for surface water connections in
large rain events via overland flow (as evidenced at times by the presence of
fish).31 Amphibians and reptiles use bays extensively for breeding and for rearing
young and as these species disperse and colonize across the landscape, they can
serve as a food source to downstream waters.32 These waters also foster abundant
insects that have the potential to become part of the downstream food chain.33 In
some instances these bays have been ditched and channelized, creating new
surface connections with other surface waters and allowing the transfer of
nutrients, sediment and other pollutants.34 The EPA and Corps should
conclude by rule that Carolina bays have a significant nexus and are
jurisdictional based on these connections and the strengths of their
effects, individually or in combination with other bays in the
watershed.35
Moreover, many other types of small, geographically isolated waters such as
depression marshes, cypress domes, and ephemeral ponds should be considered
“waters of the United States” where there is a sufficient nexus. In North
Florida, temporary or ephemeral ponds are important for sustaining the
biodiversity in upland sandhill communities36 and longleaf pine forests.
Ephemeral ponds serve as breeding sites for at least 28 amphibian species, 14 of
which breed exclusively or principally in ephemeral ponds.37 These species
include the federally listed Flatwoods Salamander (Ambystoma bishop and
Anbystoma cingulatum) and the state listed Florida Gopher Frog. A study by
Gibbons, et. al. (2006) highlights “the key role of small, isolated wetlands in
amphibian productivity and in maintaining community dynamics by coupling
aquatic habitats with adjacent terrestrial habitats via transfer of biomass and
energy.”38
In South Central Florida, Babbitt and Tanner (2007) documented how a
series of isolated and semi-isolated marshes, provide dynamic habitats that offer
varying breeding opportunities for a variety of anurans (frogs). These wetlands
79 Fed. Reg. 22250-22251.
Id.
33 Id.
34 Id.
35 Id.
36 Dodd, K. 1992. Biological diversity of a temporary pond herpetofauna in north Florida
sandhills. Biodiversity and Conservation 1:125-142.
37 Means, R. 2008. Management Strategies for Florida’s Ephemeral Ponds and Pond-Breeding
Amphibians. Final Report, available at
http://www.coastalplains.org/pdf/Final%20Report%202008.pdf (last visited November 13,
2014).
38 Gibbons, J.W., C.T. Winne, D.E. Scott, J.D. Willson, X. Glaudas, K.M. Andrews, B.D. Todd, L.A.
Fedewa, L. Wilkinson, R.N. Tsaliagos, S.J. Harper, J.L. Greene, T.D. Tuberville, B.S. Metts, M.E.
Dorcas, J.P. Nestor, C.A. Young, T. Akre, R.N. Reed, K.A. Buhlmann, J. Norman, D.A. Croshaw, C.
Hagen, and B.B. Rothermel. 2006. Remarkable amphibian biomass and abundance in an isolated
wetland: implications for wetland conservation. Conservation Biology 20:1457-1465.
31
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were connected to a vast system of ditches that ultimately enters in Harney Pond
Canal, which flows into the traditionally navigable waters of Lake Okeechobee.39
Species composition was highly dependent on meterological conditions.
In Southwest Florida, Lauritsen (2010) examined the importance of seasonal,
short-hydroperiod wetlands to foraging federally threatened woodstorks, which
supply most of the food energy for initiating reproduction40 and suggested that
the loss of these wetlands are not being appropriately mitigated for under State
wetlands permitting law.41 The impacts of the loss of these wetlands may result
in no nesting or abandonment of nesting attempts by wood storks at sites such as
Corkscrew Swamp Sanctuary.42
The federally endangered Everglade snail kite may occur in nearly all of the
wetlands of central and southern Florida.43 Takekawa and Beissinger (1989),
however, found this endangered raptor abandons larger marshes in periods of
drought and moves to canals, small patches of seasonal or permanent marshes,
and other small wetlands in the central and eastern portions of the State.44
This trend has continued in recent years as snail kites have increasingly relied on
waters within the Upper Kissimmee River Basin for foraging and nesting.45 In
2005, a multi-agency team of scientists, modelers, planners and resource
specialists cited the Takekawa and Beissinger study and found these “secondary
or refuge habitats” are “considered vital to the continued survival of the species in
Florida and are being lost at a rapid pace.” As part of its “desired restoration
condition” for the snail kite under the Comprehensive Everglades Restoration
Plan (a multibillion dollar federal-state plan to restore America’s Everglades) the
“RECOVER” team concluded, “an increase in area and heterogeneous
distribution of natural foraging habitats through restoration may be essential to
the long-term survival persistence of the species when faced with natural, yet
severe habitat disturbances, such as drought.”46 The U.S. Department of Interior
is currently working to preserve the ecological health of the Kissimmee River
Babbitt, K.J. and G. W. Tanner. 2000. Use of temporary wetlands by anurans in a
hydrologically modified landscape. Wetlands 20:313-322.
40 Fleming, D.M., W.F. Wolff, and D.L. DeAngelis. 1994. Importance of landscape heterogeneity
to wood storks. Florida Everglades Management 18:743-757.
41 Lauritsen, J.A. 2010. Functional Tracking of the SFWMD’s Implementation of UMAM: Gains
and Losses by Hydroperiod Categories. Unpublished report, Audubon of Florida, Corkscrew
Swamp Sanctuary, Naples, FL. 11 pp.
42 Id.
43 USFWS, Quick Facts, Everglade Snail Kite, at
http://www.fws.gov/verobeach/BirdsPDFs/EvergladesnailkiteFactSheet.pdf (last visited
November 14, 2014).
44 Takekawa, J.E. and S. R. Beissinger. 1989. Cyclic drought, dispersal, and the conservation of
the snail kite in Florida: lessons in critical habitat. Conservation Biology. 3:302-311.
45 See Quick Facts, supra note 43.
46 The Recover Team’s Recommendations for Interim Goals and Interim Targets for the
Comprehensive Everglades Restoration Plan, Appendix-Interim Goals, Indicator 3.12-Snail Kite.
February 17, 2005, available at, http://www.evergladesplan.org/pm/recover/igit_subteam.aspx
(last visited November 12, 2014).
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Basin through the establishment of the Everglades Headwaters Refuge47 and the
protection of wetlands within this region will likely be increasingly important in
the decades ahead due to the effects of global climate disruption.
These and other studies reveal the great importance small, geographically
isolated wetlands have for biodiversity and endangered species in Florida. In
addition, recent studies have revealed the connectivity many of these waters have
with traditionally navigable waters. For example, the physical connectivity
between geographically isolated wetlands and traditionally navigable waters was
revealed last month, when a group of researchers at the University of Florida
(McLaughlin, Kaplan and Cohen 2014) released a study finding a significant
hydraulic nexus between geographically isolated waters and more distant
traditionally navigable waters via influence to the regional water table and
ultimately regulation of downstream base flow.48
Connectivity to more traditionally navigable waters, however, is not limited to
physical connections nor should jurisdiction under the “significant nexus” test
depend on a finding of all three forms of connectivity (physical, chemical, and
biological). Justice Kennedy stated in his concurring opinion in Rapanos that
“the required nexus must be assessed in terms of the statute’s goals and
purposes. Congress enacted the [CWA] to ‘restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.’”49 Therefore, a showing
of any one of these connections should satisfy the significant nexus standard set
forth in Justice Kennedy’s concurrence in Rapanos and we agree with the Corps
and EPA that “it would subvert the intent if the CWA only protected waters upon
a showing that they had effects on every attribute of a traditional navigable water,
interstate water, or territorial sea.”50 Further, as Justice Kennedy recognized, a
hydrologic connection is not necessary to establish a significant nexus because in
some instances the lack of a connection shows the water’s significance to the
aquatic system. This is particularly true for those small, isolated wetlands that
otherwise have a biological or chemical connection and serve as breeding sites for
amphibians and are free of fish and other predators.
We urge the EPA and the Corps to rigorously examine the physical, chemical and
biological connectivity small isolated wetlands have with traditionally navigable
waters and consider these waters as “waters of the United States” where the
science supports such a finding.
47 See U.S. Fish and Wildlife Service, Everglades Headwaters National Wildlife Refuge and
Conservation Area, at http://www.fws.gov/southeast/evergladesheadwaters/#.VGYVBEuQbwI
(last visited November 14, 2014).
48 McLaughlin, D.L., D. A. Kaplan, and M. J. Cohen. 2014. A significant nexus: geographically
isolated wetlands influence landscape hydrology, Water Resour. Res., 50,
doi:10.1002/2013WR015002.
49 Rapanos, 547 U.S. at 779.
50 79 Fed. Reg. 22261.
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Sincerely,
Jason Totoiu
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