Why do federal agencies rely on ARNI designations in environmental permitting?

• Author: Matthews, Frank E.
• Position: Environmental and Land Use Law

ARNI, as the term is currently used by federal wetland regulators, stands for "aquatic resources of national importance." In the current context of environmental permitting, the U.S. Environmental Protection Agency (EPA) uses the term ARNI to justify elevated review of various environmental permits. The EPA also uses the term ARNI as justification for exercising EPA's veto power over [section] 404 of the U.S. Army Corps of Engineers (Corps) Clean Water Act. But, ARNI is not a legislatively created term. In fact, ARNI is not defined in any federal agency's regulations. So, how can the EPA use the label ARNI as justification for elevated review or denial of a permit? Is it different from the defined term "special aquatic site," and if so, how?

Background of ARNI

Section 404(q) of the Clean Water Act, 33 U.S.C. [section] 1344(q), directs the secretary of the army to enter into agreements with the heads of various federal agencies "to minimize, to the maximum extent practicable, duplication, needless paperwork, and delays in the issuance of permits under this section," referring to dredge and fill permits. (1) However, the [section] 404(q) mandate to "minimize duplication" led to multiple memoranda of agreements (MOAs) between the corps and other agencies. These MOAs created the ARNI classification.

Essentially, each of the multiple memoranda includes the same elevation process for ARNIs. When the regional director of the applicable agency determines the activity may result in substantial and unacceptable impacts to ARNIs, the regional director can request elevated review. (2) Each MOA states the MOA itself is the exclusive process for elevated review for permit cases falling within the scope of the MOA. The MOAs also describe elevated review as the process when the decision is removed from the corps' district engineer and elevated to the assistant secretary of the army for civil works (ASA(CW)).

The MOA frequently cites as a source of the term ARNI the August 11, 1992, MOA between the EPA and the corps, referred to hereinafter as the "ARNI MOA." The ARNI MOA states that the EPA may request elevated review for ARNIs; however, the MOA unfortunately does not define the term ARNI. (3) In fact, nothing in the ARNI MOA defines ARNI. No law, no regulation, not even a published guidance document provides a definition for the term. However, the EPA does list several factors to determine whether a permit dispute between the EPA and corps is eligible for elevation under the ARNI MOA. These include the "economic importance of the aquatic resource, rarity or uniqueness, and/or importance of the aquatic resource to the protection, maintenance, or enhancement of the quality of the [n]ation's waters." (4)

A review of multiple projects in which EPA has used the term ARNI reveals that ARNI is a broad term with almost limitless boundaries. The Chesapeake Bay, vernal pools, bottomland hardwoods, sub-alpine fens, bogs, coastal marshes, forested wetlands, priority habitat for migratory birds, essential fish habitat for federally managed fisheries, and seagrass have all been termed ARNIs. (5)

Application of the Term

In Florida, the EPA recently requested elevated review of a phosphate mining permit for a proposed project on the...