the green line Online

Legal Developments

by Larry MacDonnell

The decision is important because of the steadily increasing use of plans for augmentation to enable development of new water supplies. While the Court supported the decision of the water court, it went on to make clear that claim preclusion, or res judicata, would not serve to prevent reexamination of previously adjudicated plans as they might apply to new circumstances.

Clean Water Act and Endangered Species Act
The U.S. Supreme Court decided that loss of the consultation requirement under the ESA did not bar the U.S. from transferring permitting authority under the Clean Water Act to the State of Arizona. In National Association of Home Builders v. Defenders of Wildlife, the Court considered a challenge to EPA's decision to give Arizona authority to issue National Pollution Discharge Elimination System (NPDES) permits. The Ninth Circuit had remanded the decision to EPA for reconsideration of the effect of this transfer on protected species related to loss of consultation.

The Supreme Court found EPA had determined Arizona met all the statutory requirements for taking over the permitting program. It held the ESA could not be read to have created an additional requirement. Thus it upheld the transfer decision.

Clean Water Act
EPA and the U.S. Army Corps of Engineers issued joint guidance on June 5th respecting jurisdiction under the Clean Water Act following the Rapanos decision. The guidance extends jurisdiction to wetlands that abut non-navigable tributaries of navigable waters. It precludes jurisdiction over swales or erosional features and over ditches in uplands that do not carry essentially permanent flows of water. It applies Justice Kennedy's "significant nexus" standard to the tributary and the abutting wetland to determine if they "significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters."