Hooper Prevails on Administrative Appeal Addressing Vernal Pool Wetlands

On December 17, 2008, a client of B. Demar Hooper, a Prof. Corp., received a favorable ruling from the South Pacific Division of the United States Army Corps of Engineers (Corps). The administrative appeal questioned the validity of a Sacramento District Corps assertion of jurisdiction over northern California vernal pool wetlands.

Section 404 of the federal Clean Water Act (33 U.S.C. § 1344, “CWA”) is administered by the Corps and regulates discharges of dredged or fill material into “waters of the United States.” Determining the extent of Corps jurisdiction is important to all kinds of land development. It affects not only traditional residential, industrial, commercial and mining activities, but also agricultural activities that initially prepare undisturbed land for farming. By regulation, the Corps allows an “administrative appeal” of a Corps jurisdictional determination. In California, the South Pacific Division of the Corps hears appeals from the Sacramento District.

In this case, the property (located in the City of Oroville, Butte County, near the municipal airport and golf course) contains numerous vernal pools. The vernal pool landscape extends into the adjacent golf course property, developed in the 1950s before enactment of the CWA. The property is about 1.5 miles from the Feather River.

The owner appealed the Sacramento District Corps’ assertion of jurisdiction, citing five reasons, all of which either had merit or “may have merit.” The South Pacific Division therefore remanded the jurisdictional determination to the District for further evaluation and reconsideration of its determination that the wetlands were subject to Section 404 jurisdiction.

Following is a brief summary of the arguments raised and general implications to other potentially regulated property:

1. The property’s wetlands were adjacent to waters that were themselves wetlands, and by Corps regulations therefore excluded from jurisdiction. In simplified terms, the limit of jurisdictional waters of the United States is traditional (commercially) navigable waters and their tributaries, and wetlands “adjacent” to those waters. Although the Corps definition of “adjacent” allows some discretion (it means “bordering, contiguous, or neighboring”), the Corps may not use that discretion to “bootstrap” otherwise hydrologically isolated features into jurisdiction by finding that the wetland is adjacent to a wetland that is adjacent to another wetland, etc., until reaching a final wetland that is adjacent to a navigable waterway. The remand confirms this by requiring the District to document how it “. . . ultimately concluded that the wetlands on-site were ‘contiguous’ and adjacent to a Traditional Navigable Water (TNW) and not [to] other waters that were themselves wetlands.”

The practical implication is that property owners may wish to carefully characterize nearby, off-site wet features before submitting delineations to the Corps.

2. The wetlands at the project site do not comprise a "contiguous vernal pool wetland complex." The District contended that, rather than being discrete features over which the Corps must find case-by-case reasons for jurisdiction, the Corps could treat all the vernal pools as a singular feature, entirely jurisdictional if any part was jurisdictional. The Administrative Appeal Officer disagreed, requiring the Corps to document the general relationship between the various wetlands and what the District had considered a “contiguous vernal pool wetland complex.” The decision also requested reconciliation of the District’s “complex” designation with the appellant’s evidence of “three distinct micro-basins.”

In practical terms, the client’s investment in micro-watershed analysis returned excellent dividends. In the past, the Corps has been able to simply declare vernal pools “complexes” without further documentation of the micro-drainage. This decision emphasizes the importance of the factual, evidentiary component to the administrative record.

The Appeal decision combined the third and fourth challenges to jurisdiction: 3. & 4. There was no evidence of the vernal pools extending to the Feather River, or of any hydrologic connectivity or adjacency to the Feather River, the nearest TNW. Corps jurisdictional determinations may not simply “conclude” that a property’s wet features are hydrologically connected to a TNW. The Corps must support its determinations with substantial evidence, not mere speculation. In this case, defined tributaries near the project site flowed in the general direction of the Feather River, and the Corps concluded, without providing documentation, that the drains ultimately flowed into that river. The Corps had not accounted, however, for intervening geographic features. They include a previously mined area with a generally lower elevation than occurs “downstream,” and an area of dredger tailings with no clear connection to the Feather River.

The remand points out the importance of addressing all elements of jurisdiction, rather than simply conceding elements distant from the project site.

5. The site’s vernal pools lack a significant nexus to the Feather River and therefore do not have more than insubstantial or speculative impact on the nearest TNW. The decision found that this issue “may have merit.” After the District conducts the investigation required by the previously discussed reasons, unless it finds that the site’s vernal pools are either adjacent to a TNW or directly abut a “relatively permanent water,” it cannot assert jurisdiction unless it finds that “. . . a significant nexus exists between the wetlands on-site and the nearest TNW. . .” This test articulates the standard found in the Rapanos case, discussed elsewhere on this website. While the standard for “significance” may be relatively low, the impact cannot be “speculative” or “insubstantial,” and the Corps must document its findings with substantial evidence.

This issue raises the practical issue of arguing all relevant elements in an Administrative Appeal. Had the appellant only raised this issue, it might have been found without merit, since the Appeal Officer relied on previously raised issues as a foundation for consideration of the “significant nexus” issue.

Administrative Appeal decisions are comparable to California civil actions in Administrative Mandamus. A decision will be upheld if it conforms to legal requirements and substantial evidence supports it. If the decision fails, the Administrative Appeals officer does not substitute his or her opinion, but simply remands the decision for an action consistent with the opinion. In practice, however, many decisions remanded to the District level result in a revised determination with reduced or eliminated jurisdiction.

The entire decision may be viewed at the following link:

http://www.spd.usace.army.mil/cwpm/public/ops/regulatory/adminAppeals/Final%20Appeal%20Decision%20-%20Linkside.pdf

All Administrative Appeals are available for review on the South Pacific Division website:

http://www.spd.usace.army.mil/cwpm/public/ops/regulatory/adminAppeals/AppealsTable.html

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