Three Strikes – You’re Still Not Out: Senate To Again Consider Controversial Legislation to Broaden Federal Clean Water Authority

The Obama Administration is supporting legislation to broaden federal Clean Water Act (“CWA”)[1] jurisdiction over wetlands and other isolated waterbodies.[2] For the fourth time in 6 years, legislation has been introduced to extend federal jurisdiction over an estimated 20 million acres of wetlands, tributary and isolated waters, prairie potholes, and mudflats.[3] The United States Supreme Court has held these types of waterbodies to be generally outside federal jurisdiction.[4] Legislation was introduced in Congress in 2003, 2005, and 2007 to bring them under federal jurisdiction. All three times, the legislation failed to pass. But three strikes do not mean the legislation is out this year. This time the bill, the Clean Water Restoration Act of 2000 (“CWRA”), S.787 has the support of the White House and federal agencies.[5] In a May 20, 2009 letter, Environmental Protection Agency (“EPA”) Administrator Lisa Jackson, acting Army Corps of Engineers (“Corps”) Chief Terrence “Rock” Salt, Agriculture Secretary Tom Vilsack, Interior Secretary Ken Salazar, and Council on Environmental Quality Chairwoman Nancy Sutley urged passage of the bill in order to make the definition of waters it protects “clear, understandable, well-supported, and transparent to the public.”[6]

Under the CWA, as enacted in 1972, Congress defined the term “navigable waters” as “waters of the United States, including the territorial seas,” and made no mention of other waterbodies.[7] The CWRA would amend the CWA by replacing the key jurisdictional phrase “navigable waters” with “waters of the United States,”[8] very broadly defined as:

all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.[9]

If the legislation is passed this time, EPA would begin to regulate water quality, stormwater discharges, water supply and infrastructure, and all other activities that have the potential to create water pollution in these newly covered waters. These waters have not completely escaped regulation, but they have, to date, tended to be regulated by state and local governments. They would become subject to federal regulation if the law is passed, likely adding significant new compliance costs and obligations.

Background

Almost three years after the United States Supreme Court’s divided decision in Rapanos v. United States[10], considerable uncertainty remains about the scope of federal jurisdiction under the CWA. As we noted in an earlier article on this issue, Legislative Solution Possible to Resolve Uncertainty Surrounding Clean Water Act Jurisdiction, Marten Law Group Environmental News (February 13, 2009), since Rapanos, there have been at least eight federal appellate decisions, seventeen federal district court decisions (four on appeal), eight petitions for writs of certiorari to the Supreme Court that have been denied, most recently on December 1, 2008, and approximately twenty-five cases presently in some form of litigation addressing Rapanos related issues.[11]

Decisions by the Corps and the EPA have only served to further muddy the waters.[12] An April 30, 2009 report from the EPA Office of Inspector General issued in response to a request from Representative James Oberstar (D-Minn.), Chairman of the House Committee on Transportation and Infrastructure, contained excerpts of interviews with EPA, Corps, and state wetlands staff documenting the practical impacts of the CWA jurisdictional tests established under the Rapanos decision, including reports asserting non-enforcement of alleged CWA violations. EPA Administrator Lisa Jackson stated in May 2009 “that staff members in the agency’s water office spend half or more of their time working with states on jurisdictional issues for wetlands, describing the time spent ‘an alarming figure.’ She said the effort leaves staff with less time to work on actual permits with states.”[13]

The CWA jurisdictional issue was most recently addressed by the United States Supreme Court in 2006 in Rapanos.[14] In that case, the Supreme Court, by a 4:4:1 plurality, remanded to the Sixth Circuit the issue of whether the Corps exceeded its statutory authority under the CWA by requiring property owners to acquire permits before dredging and filling certain wetlands.[15] The Court’s decision in Rapanos did little to clarify CWA jurisdiction and, in fact, advanced conflicting tests for determining whether wetlands are protected by federal law. For further analysis of the Rapanos decision, see J. Kray, Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided, Marten Law Group Environmental News (June 21, 2006).

Prior Attempts to Amend the CWA

The idea of amending the CWA to expressly include wetlands and other non-navigable waters was proposed in 2003,[16] 2005,[17] and again in 2007, when Representative Oberstar introduced H.R. 2421, a bill that sought to amend the CWA “to clarify the jurisdiction of the United States over waters of the United States.”[18] Each of those earlier attempts to amend the CWA occurred during the prior administration and none made it out of committee. Those bills faced stiff opposition from Republican legislators and from businesses and interest groups in the mining, agriculture, real estate, and development sectors. As further discussed below, the CWRA will also likely face legal challenges if passed. As a result, some environmental groups have reportedly been uncomfortable with extending the CWA's jurisdiction "to the fullest extent that these waters … are subject to the legislative power of Congress under the Constitution," given the current makeup of the Supreme Court and its decisions in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers[19] and Rapanos.

Mr. Oberstar is now the chair of the House Committee on Transportation and Infrastructure. On January 15, 2009 that Committee issued its Legislative Agenda, which includes “strengthening Clean Water Act protections” as one of its goals. Mr. Oberstar has indicated that he will introduce in the House of Representatives a companion bill to S.787.[20]

Not the End of the Story: Legal Action Likely if the Act Becomes Law

Ironically, for legislation intended to clarify the law, there is almost certain to be a legal battle if the CWRA is enacted. The question would be whether Congress has the power to broaden the CWA to include federal jurisdiction over non-navigable waters, such as isolated prairie potholes. Although the Supreme Court decided in SWANCC that Congress did not intend the CWA to reach so broadly, the majority decision and the dissenting opinion also discussed the constitutional scope of federal Commerce Clause authority – i.e. whether federal efforts to assert jurisdiction over solely intrastate, non-navigable, waterbodies would exceed the United States’ constitutional authority.[21]

The proposed CWRA tries to anticipate that question and potential challenges to the scope of the United States’ Commerce Clause authority by identifying numerous ways in which clean water issues impact the national economy. For example, S.787 expressly states that “protection of intrastate waters is necessary to prevent significant harm to interstate commerce and sustain a robust system of interstate commerce in the future: …”[22] It then lists intended benefits and affects to interstate commerce arising from broad federal jurisdiction over waterbodies, including the following:

• Improved flood prevention
• Increased public drinking water supply protection
• Enhanced or protected recreational activities, including waterfowl hunting, bird watching, fishing, and photography
• Implementation of treaties to which the United States is a party, including treaties protecting fish, birds, and other wildlife
• Protection of Federal land, including parkland, refuge land, and other land under Federal ownership.[23]

Those supporting the CWRA will look to such provisions and to the dissenting opinion in SWANCC[24] to argue that it is within Congress’ constitutional authority to regulate water quality so broadly. The dissent, written by Justice Stevens and joined by Justices Souter, Ginsburg, and Breyer, noted that the Supreme Court has identified “‘three broad categories of activity that Congress may regulate under its commerce power’: (1) channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons and things in interstate commerce; and (3) activities that ‘substantially affect’ interstate commerce.”[25] The SWANNC dissent opined that the migratory bird rule at issue in that case is properly analyzed under the third category and that “[i]n order to constitute a proper exercise of Congress’ power over intrastate activities that ‘substantially affect’ interstate commerce, it is not necessary that each individual instance of the activity substantially affect commerce; it is enough that, taken in the aggregate, the class of activities in question has such an effect.”[26]

Those opposing the CWRA will look to the 5:4 majority opinion former Chief Justice Rehnquist authored in SWANNC to argue that Congress is overreaching. That opinion states that permitting federal jurisdiction over ponds and mudflats “would result in a significant impingement of the States’ traditional and primary power over land and water use” and, therefore, raises “significant constitutional and federalism questions.”[27] The SWANNC opinion did not, however, answer those constitutional questions because it determined that Congress did not intend the CWA’s jurisdiction to apply so broadly.[28]

For more information on the proposed CWRA and Marten Law Group’s water and wetlands practice please contact Jeff Kray.