Statement of the National Association of Flood
and Stormwater Management Agencies
presented to the
Clean Air, Wetlands, Private Property and Nuclear Safety Subcommittee
Environment and Public Works Committee
U.S. Senate
Wetlands - Recent Regulatory and Judicial Developments
James Noyes, Assistant Director
Los Angeles County Department of Public Works
June 26, 1997

Introduction

The National Association of Flood and Stormwater Management Agencies (NAFSMA) is a national organization representing flood control and stormwater management agencies serving a total population of more than 100 million citizens.

The mission of the Association is to advocate public policy, encourage technologies and conduct education programs which facilitate and enhance the achievement of the public service functions of its members. The Association's members are public agencies whose function is the protection of lives, property and economic activity from the adverse impacts of storm and flood waters.

NAFSMA appreciates this opportunity to share our views on issues concerning recent wetlands regulatory and judicial developments. The recent judicial developments are of particular concern to NAFSMA members since the Association was an amicus in the legal challenge to the Tulloch rule filed by the American Mining Congress and others in January 1994.

Background on Flood Control and Stormwater Management Systems

Flood control and stormwater management systems are complex and interdepen-dent networks of structures and watercourses which typically include some combination of dams, dikes, levees, drainage ditches, channels, reservoirs and wet or dry stream beds.

As examples, Riverside County, California alone has an extensive flood control system including 35 dams, debris basins and detention basins, 48 miles of levees, 188 miles of open channel and 182 miles of underground storm drain. Los Angeles County Department of Public Works operates or maintains 15 reservoirs, 143 sediment retention facilities, 228 stream bed stabilization structures, 33 storm water pumping plants, 29 ground water recharge facilities, over 100 miles of soft bottom flood control/groundwater recharge channels, 350 miles of reinforced concrete channels and some 97,000 inlets and catch basins. Some of the facilities were constructed for the sole purpose of sediment entrapment, and others cannot function effectively and at design capacity without periodic sediment removal.

The Flood Control District of Maricopa County maintains over 30 miles of channel and over 60,000 acres of floodways, spillways and pooling areas. New York State maintains 150 miles of flood control channels in upstate New York alone, with more in the metropolitan area and Long Island. Other NAFSMA members are responsible for comparable facilities, generally scaled to the size, population and climate of the geographic area served.

Accumulation of vegetation and sediment in flood control structures and systems is a reoccurring and predictable occurrence. Flood control system maintenance removes these deposits to maintain the character and flow capability of the systems. Such work is required periodically for both manmade and natural features which are involved in passing and controlling flood flows.

The failure to provide such maintenance results in serious consequences. Accumulated vegetation and sedimentation directly reduce the volumetric and flow capacity of streams, channels, reservoirs and other devices which carry, divert and/or hold storm and flood water. Encroaching vegetation and sediment also affect the "friction factor" of moving water in both natural and man made channels. Reduced volumetric capacity and increased friction both serve to reduce the effectiveness of flood control systems, thus reducing protection of life, health and property.

In order to maintain the optimal functions of these systems at their original design capacity, vegetation and sediment must periodically be removed. Routine maintenance is especially critical for older systems which were frequently designed to lower protection standards and which are therefore even more critically dependent on continuing maintenance. These older systems were not designed to handle build up of sedimentation and vegetation. Especially for agencies with older systems and facilities, the public is being put at risk whenever normal maintenance activities are delayed or restricted.

Federally Mandated Maintenance of Flood Control Facilities

In addition to the fact that proper operation and maintenance of flood control systems is critical to protect the life and property of the residents served by NAFSMA member agencies, in many cases maintenance work is federally mandated. For projects constructed with Federal partners, such as the U.S. Army Corps of Engineers, local sponsors are mandated by federal law and performance contracts to operate and maintain these projects to standards dictated by the federal agencies. Moreover, the local flood control entity is also required to indemnify and hold these agencies harmless from all liability and damages.

There are also additional federal mandates for flood control maintenance. In order to participate in the National Flood Insurance Program (NFIP), the Federal Emergency Management Agency (FEMA) requires the participating community to maintain the carrying capacity of all flood control facilities, and in some cases even semi-natural creeks and rivers. In most cases, this responsibility ultimately falls on local governments. It's important also to note that communities that fail to meet their maintenance responsibilities are subject to expulsion from the National Flood Insurance Program, loss of other federal aid, and even exposure to suits by FEMA for recovery of flood insurance and disaster payments.

Tulloch Rule Litigation

NAFSMA members believe that the government's August 25, 1993 excavation rule inappropriately expanded the scope of Section 404 of the Clean Water Act in such a way that routine maintenance and operation of flood control and related water management systems is severely hampered. The rulemaking also intruded on local management functions and imposed additional costs and regulatory burdens on local governments without any measurable corresponding environmental benefit.

Language in the so-called Tulloch rule expanded the definition of "discharge of dredged material" to include "any addition, including any redeposit of dredged material including excavated material into waters of the United States which is incidental to any activityincluding mechanized landclearing, ditching, channelization, or other excavation." The new requirement meant that flood control and other local government agencies would have to obtain a Section 404 permit from the Army Corps of Engineers for even the most routine maintenance and operation activities, despite the lack of any such requirement in the statute itself, and in fact contrary to existing provisions of the statute.

With this rulemaking, the government for the first time was requiring a permit for certain routine maintenance activities that resulted in incidental fullback into jurisdictional waters. The scope was thus changed from regulating the addition of materials to the waters of the United States, including wetlands, to regulating the removal of materials from these waters.

The result of the rule is that formerly routine maintenance activities of existing flood control facilities, many built in federal partnership, are now subject to onerous federal permit and mitigation requirements, along with the attendant delays, increased costs, and ongoing threat to the public health and safety.

NAFSMA and its member agencies do not suggest that all of their projects and activities were unregulated prior to August 25, 1993. Many activities undertaken for flood control and other water management purposes, such as significant new construction affecting waters and wetlands and the discharge of excavated sediment at specific disposal sites, have always required Section 404 permits and would continue to require protective oversight regardless of the Tulloch rule.

What was new and particularly burdensome about the Tulloch rule was the extension of jurisdiction of Section 404 to excavation and other routine operation and maintenance activities undertaken at thousands of sites throughout the country.

In response to the serious adverse effects that the August 25, 1993, regulation had on flood control and water conservation activities across the country, NAFSMA filed an amicus curiae brief in support of the American Mining Congress challenge to the Tulloch regulation.

Judge Harris Rules To Strike Tulloch Regulation

In his January 23, 1997 ruling, U.S. District Judge Stanley S. Harris struck down the excavation rule and expressed his legal opinion that the Corps and EPA had "unlawfully exceeded their statutory authority in promulgating the Tulloch Rule" and reiterated that the agencies authorities are limited to adopting regulations that effect the will of Congress as expressed in the statute.

In his decision the Judge also refers to an earlier Federal Register notice for the Corps 1986 regulations that stated:

Section 404 clearly directs the Corps to regulate the discharge of dredged material, not the dredging itself. Dredging operations cannot be performed without some fallback. However, if we were to define this fallback as a "discharge of dredged material," we would, in effect, be adding the regulation of dredging to section 404 which we do not believe was the intent of Congress.

NAFSMA also finds it of interest that Judge Harris referenced in his decision an August 24, 1993 White House press release announcing the Tulloch rule that states: "Congress should amend the Clean Water Act to make it consistent with the agencies' rulemaking." The press release, provided as an example in the plaintiff's original motion for summary judgment, clearly illustrated the government's awareness that the Tulloch rule exceeded the congressional intent and authorization.

Government Moves to Narrow Judgment

On February 6, 1997, the government filed a motion to alter or amend the Court's January 23 judgment and asked the Judge for expedited consideration. The agencies argued that the Judge's decision, and subsequent injunctive relief, should apply only to members of the plaintiff organizations. In addition, they sought to narrow the ruling only to those who were members at the time of the original motion for summary judgment (January 1994) and further only to those who were involved in excavation activities at the time.

NAFSMA again responded as an amicus in the litigation.

The Judge rejected the government's motion on April 2 once again reiterating the point that the agencies had gone beyond their statutory authority in promulgating the Tulloch rule. The government filed its notice of appeal from the District Court's January 23 and April 2 decisions on April 10. The government has also filed a motion to stay the court judgment pending appeal and NAFSMA has filed again to be considered as an amicus at the Circuit Court of Appeals.

Formal Interim Guidance Issued

In the meantime, the Corps and EPA on April 11 issued formal interim guidance on regulating certain activities in light of the American Mining Congress v. Corps of Engineers decision. This guidance makes it clear that this is an interim period and that currently no permit is needed for activities involving only incidental fallback. The guidance directs Corps offices receiving or already processing such a permit application to respond back to the applicant that "as an accommodation to the applicant, the Corps will process the permit if the applicant requests in writing that the Corps do so."

Irrespective of the guidance, NAFSMA member agencies and others have been informed by the Corps that although a permit would not be needed at this time, the agencies would have to cease operations and apply for a permit if the decision was stayed or overturned on appeal or face potential enforcement actions.

A copy of a letter from the Corps' Omaha District to a local agency notes clearly that if the ruling is stayed or reversed, the Corps would again regulate activities such as those proposed. The letter further stated that if this occurs and your project has already begun, the agency would be required to stop work and obtain authorization.

As described in the April 11 guidance, the letter goes on to suggest that the agency may request in writing that the Corps process their permit application to verify that the project would not otherwise be subject to regulation and that processing the application now should ensure that there would be no unnecessary delays in the event that regulation of the activity resumes.

NAFSMA Urges Congress to Oversee the Government's Efforts To Carry Out Judge's Ruling

NAFSMA applauds the Committee's commitment to gather testimony on this critical issue and we urge members to continue their oversight of this situation. Our hope is that congressional involvement can help to clarify what is at best a confusing and uncertain time for our local flood control agencies.

Although we are gratified by the Court's recent decision, our members need to know that they can carry out their maintenance responsibilities, especially in light of the court's recent decision, without fear of enforcement action by the Corps or challenges by other organizations.

As examples of some of the difficult situations that have resulted from the Corps wetland regulations, a Southern California Department of Public Works in 1993 was informed by the Corps that its long-established (50-years) maintenance practices to restore design capacity of existing facilities could create significant impacts and that the agency needed to obtain permits. These same maintenance practices are also exercised by the Corps and in some cases were required of the local agency when the Corps transferred many of the facilities to the local sponsor to maintain.

In conjunction with the Corps annual inspection of these facilities, the Corps notified the Public Works Department that it must clear various channels of debris and vegetation. The Corps then required the Department to obtain permits from the Corps, which in turn solicited comments from U.S. EPA, the U.S. Fish and Wildlife Service and the Regional Water Quality Board.

On the one hand the Corps is demanding that the Public Works Department remove the vegetation, while on the other hand the Corps is demanding that the Department secure a permit from the Corps, respond to any opposition to the permit, and mitigate for the encroaching sediment and vegetation removal.

In another case, the local agency is required to obtain new permits annually from the Corps to perform preseason channel clearing activities to remove vegetation that grows in certain channels during the dryer season, and which needs to be removed prior to the rainy season to reduce potential flood events. Requiring local agencies to go through this permit application process on an annual basis is not only costly to the local agency, it is also time-consuming and hampers the agency's ability to clear the channels in sufficient time to protect the health and safety of its residents.

In another example, San Bernardino County in California began to have problems getting permission to remove vegetation from the Mojave River in late 1980's. In 1993, the county faced a fairly sizable flooding event on the river. In one locality, Victorville, the flood waters went over the top of the levee and flooded out a small part of the city. As part of the same event on another channel, flow couldn't follow its normal pattern because of vegetation, took a sharp right turn from path and flooded out many backyards and caused problems for residences in Spring Valley Lake. Had the county had the ability to continue removing debris and vegetation, it possibly could have avoided at least the second flooding event.

As part of the Spring Valley event, the county was forced to go into flood fighting mode and lost at least a half day in this action by waiting for Fish and Wildlife approval, which was eventually granted. Once the emergency was over, the federal government came back and notified the agencies that they would have to mitigate for vegetation lost in the flood fighting effort.

Had the county had the ability to continuously remove vegetation and debris, the flooding event may have been avoided.

In Riverside County, California, in January 1993, the Old Town area of the City of Temecula was subjected to major flooding by overflow from Murrieta Creek. Flows raged through shops, stores and restaurants several feet deep, resulting in over 10 million dollars of property damage. Miraculously no one was killed as a direct result, but in a number of cases citizens escaped their cars just before they were swept away. Some of the businesses never fully recovered and no longer exist. Prior to the flood, federal officials had refused to allow mechanical clearing of vegetation and removal of accumulated sediment on the creek. Only after the flooding, was the District able to get an emergency 404 permit. The expiration date of the permit was April 30, 1993. Work then proceeded on Stage 1 and then in August, when work on Stage 2 was ready to proceed, the District requested an extension but the Corps said that a new Individual permit would be needed for this work since there was no emergency at the time. Finally in October after many discussions and much negotiation, an extension to the original permit was granted.

Ironically, FEMA later reimbursed the District and the City of Temecula for much of the cost of the post cost flood maintenance under a Federal Disaster Declaration, and also paid flood insurance and damage claims to those who were flooded.

NAFSMA Urges Congress To Reaffirm Its Intent To Exempt Flood Control Activities

NAFSMA very strongly agrees with the Court's recent decisions that the Corps Tulloch rule does not properly reflect congressional intent behind the Section 404 legislative language and the association is urging that Congress help the public agencies charged with the protection of lives and property by reaffirming the specific intent concerning the ability to operate and maintain flood control channels and engineered flood control facilities.

NAFSMA believes that Congress has already recognized the importance of maintaining flood control systems by providing a special exemption from regulation in Section 404(f)(1)(B) stating "for the purpose of maintenance, including emergency reconstruction of recently damaged parts of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches and transportation structures.

We urge Congess to reaffirm this exemption to ensure that whatever the outcome of the Tulloch rule litigation these critical public functions are not impaired.

NAFSMA urges that legislation be adopted as early as possible, to reaffirm its exemptions for flood control operations by clearly stating exemptions for operations and maintenance of flood control channels and engineered flood control facilities from the Section 404 permitting process.