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Legislative Solution Possible to Resolve Uncertainty Surrounding Clean Water Act Jurisdiction

February 13, 2009

Almost as soon as Congress passed the Clean Water Act (“CWA”)[1] in 1972, disputes started to arise over the extent to which certain wetlands and non-navigable tributaries constitute “waters of the United States” subject to federal jurisdiction. Thirty-six years later this core jurisdictional issue – which impacts development, water quality permitting, stormwater control, water supply and infrastructure, and all other activities that have the potential to create water pollution – has remained largely unresolved. Decisions by the United States Supreme Court, the United States Army Corps of Engineers (“Corps”), and the Environmental Protection Agency (“EPA”) have only served to muddy the waters, leaving both regulators and the regulated community precious few stars by which to navigate.

There is some reason to believe that Congress will finally wade into the core jurisdictional issue this year, and attempt to bring greater certainty into the 1972 Act’s reach. But whether Congressional action will resolve or add to the uncertainty depends on whether some tough decisions are made. As discussed below, some of the legislative opportunities for providing greater certainty include 1) directing the Corps and EPA to apply one of several competing judicial tests for determining federal CWA jurisdiction; 2) allocating all federal responsibility for making CWA jurisdictional determinations solely to either the Corps or EPA; or 3) redefining “waters of the United States” to either expressly include or even exclude federal jurisdiction over wetlands.

“Navigable Waters” Under the CWA

The CWA jurisdictional issue was most recently addressed by the United States Supreme Court in 2006 in Rapanos v. United States.[2] 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.[3] The most recent guidance on the Rapanos decision coming out of the Corps and EPA can be found in a revised Joint Guidance Memorandum issued on December 2, 2008.[4]

The CWA’s primary objective is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”[5] To achieve this express statutory objective, the CWA strictly prohibits discharging pollutants into the “navigable waters of the United States” without a permit from the Corps, EPA, or an authorized state environmental authority.[6] The CWA defines “navigable waters” to mean “waters of the United States.”[7] The Corps has interpreted “waters of the United States” to include adjacent wetlands and tributaries.[8] Corps regulations also extend the definition of “waters of the United States,” and hence Corps jurisdiction, to “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds,”[9] “[t]ributaries of [such]waters,”[10] and “[w]etlands adjacent to [such] waters [and tributaries],”[11] even if these adjacent wetlands are separated from U.S. waters by man-made structures, such as berms.[12] The problem has been applying these definitions in the field.

The Rapanos Decision

In Rapanos, 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.[13] The case presented the Court with the opportunity to determine whether the wetlands at issue were subject to the United States’ CWA jurisdiction. Unfortunately, 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.

Justice Scalia’s plurality decision in Rapanos narrowly interpreted “waters of the United States,” and would remove many wetlands from federal jurisdiction by requiring a continuous surface water connection.[14] Justice Scalia’s approach failed, however, to command a majority, and was specifically rejected in Justice Kennedy’s concurrence. Justice Kennedy found that the plurality interpretation of “waters of the United States” was inconsistent with the CWA’s text and purpose, and he advanced a test that would require the federal government to establish a “significant nexus” between wetlands and navigable waters on a case-by-case basis.[15] 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).

The Robison (McWane) Case

As the Sixth Circuit Court of Appeals noted in a decision issued on February 4, 2009 in United States v. Cundiff, “[p]arsing any one of Rapanos lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which – if any – of the three main opinions lower courts should look to for guidance.”[16] Although the Cundiff decision is the most recent to apply Rapanos, it provides little guidance because that court held that federal CWA jurisdiction was proper “under each of the primary Rapanos opinions and therefore we do not have to decide here, once and for all, which test controls in all future cases.”[17]

In United States v. Robison,[18] one of the more notable post-Rapanos cases, the Eleventh Circuit Court of Appeals overturned a criminal conviction imposed against a pipe manufacturer and two of its employees for CWA violations on the grounds that the jury instructions contained a definition of “navigable waters” that was inconsistent with the plurality decision in Rapanos. Relying on Justice Kennedy’s “significant nexus” test in Rapanos put the Eleventh Circuit at odds with the First Circuit Court of Appeals[19] and with the Corps’ and EPA’s joint guidance memoranda stating that their respective staff may determine CWA jurisdiction under either the Kennedy test or the Scalia test.[20] The Robison decision thus calls into question the EPA’s post-Rapanos analysis of its CWA jurisdiction. For that reason, the Justice Department filed a petition for writ of certiorari asking the Supreme Court to review the Eleventh Circuit’s decision in Robison. That petition was the first, and so far only, time that the United States had asked the Supreme Court to review a post-Rapanos CWA jurisdictional decision. On December 1, 2008, the Supreme Court denied certiorari without comment. For more on the Robison case see our article, J. Kray, Post-Rapanos Courts Setting High Evidentiary Bar for Clean Water Act Jurisdiction, Marten Law Group Environmental News (December 19, 2007).

Corps/EPA Guidance

The December 2, 2008, revised joint guidance memorandum issued by the Corps and EPA (2008 Guidance) is intended to assist personnel at those agencies in determining when to exercise CWA jurisdiction over wetlands and waterbodies addressed by the U.S. Supreme Court in Rapanos.[21] The Corps and EPA had issued an earlier version of the joint guidance memorandum (prior guidance) in June 2007.[22]

Representatives for both environmental and industry groups have criticized both the 2007 prior guidance and the 2008 Guidance, for different reasons. One thing they agree on is that, like its predecessor, the 2008 Guidance does little to resolve the uncertainty that Rapanos created.[23] Specifically, the 2008 Guidance fails to resolve CWA jurisdiction over wetlands adjacent to non-navigable waters, intermittent and ephemeral streams, and other non-territorial water bodies that may account for a large portion of the 53% of water bodies the EPA estimated were at risk in Rapanos.[24] By leaving many of the hard jurisdictional questions to a time and paperwork intensive case-by-case analysis, the 2008 Guidance has done little to reduce jurisdictional disputes or speed up the permit process, and may in fact encourage litigation.[25] For a discussion referencing the 2007 prior guidance, see J. Kray “Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.” Marten Law Group Environmental News (June 6, 2007).

Options for Congressional Action

Because the executive and judicial branches of government have been largely unsuccessful, the 111th Congress has the opportunity to clarify the scope of federal CWA jurisdiction. We see three primary areas for potential Congressional action.

First, Congress could direct the Corps and EPA to apply one of the Supreme Court’s competing judicial tests from Rapanos for determining federal CWA jurisdiction. Such a step is inviting as a way to reduce litigation over which test applies. Any euphoria the Corps, EPA, and the regulated community might feel over Congressional clarification of Rapanos may, however, be short-lived. If Congress legislated application of Justice Kennedy’s significant nexus test, then the agencies would still in many instances need to make case-by-case jurisdictional determinations about whether the waterbody at issue “significantly affects the chemical, physical, and biological integrity of downstream traditional navigable waters.” Furthermore, litigation may not abate because parties unhappy with the test Congress selects may challenge the decision on constitutional grounds that Congress is violating the separation of powers between the legislative and judicial branches by limiting the Supreme Court’s decision in Rapanos. Finally, selecting one of the Rapanos tests would be treating a symptom of the problem, judicial interpretation, rather than the source, Congress’ definition of “navigable waters.”

Second, Congress could allocate all federal responsibility for determining whether a wetland is within federal CWA jurisdictional solely to either the Corps or EPA. EPA presently shares CWA § 404 enforcement responsibilities with the Corps. As a result, EPA and the Corps coordinate determinations of CWA jurisdiction for (1) intra-state, non-navigable, isolated waters and (2) findings of a “significant nexus” for the following waters:

  • Non-navigable tributaries that do not typically flow year-round or have continuous flow at least seasonally (e.g., typically at least 3 months each year);
  • Wetlands that are adjacent to such tributaries; and
  • Wetlands that are adjacent to but that do not directly abut a relatively permanent non-navigable tributary.[26]

Allocating all jurisdictional responsibility to one of the agencies would reduce the need for coordination on jurisdictional determinations and may reduce permitting delays that arise from such coordination. Untangling the CWA relationship as between EPA and the Corps is, however, complex. Both agencies have areas of authority under the CWA that involve jurisdictional determination. EPA has authority to issue CWA § 402 National Pollutant Discharge Elimination System program (NPDES) permits and the Corps has authority to issue CWA § 404 permits for discharging dredged or fill material to waters of the United States. Thus, Congress would need to address the entire CWA scheme to fully reduce the agencies’ overlap.

Third, Congress could redefine “waters of the United States” to either expressly include or exclude federal jurisdiction over wetlands and non-navigable non-relative permanent tributaries. As it stands, the term “navigable waters” was defined by Congress only as “waters of the United States, including the territorial seas,” and makes no mention of other waterbodies.[27] The idea of amending the CWA to expressly include wetlands was proposed in 2003,[28] 2005,[29] and again in May 2007, when Representative James Oberstar (D-Minn.) introduced H.R. 2421, a bill that sought to amend the CWA to “to clarify the jurisdiction of the United States over waters of the United States.”[30] Mr. Oberstar is the current 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 and Senator Russ Feingold (D-Wis.) have indicated that they will introduce legislation to amend the CWA and clarify the scope of federal jurisdiction over wetlands and non-navigable tributaries.[31]

H.R. 2421 aims to define the Corps’ and the EPA’s CWA jurisdiction very broadly and require federal permits for actions impacting wetlands, intermittent and ephemeral streams, prairie potholes, and other non-territorial water bodies not covered under the Corps’ Guidance. It would certainly clarify when such permits are required and resolve the present uncertainty which has increased project costs and delayed or prevented projects which impact such waterbodies. Such legislation would also increase the number of projects requiring CWA permits and may, if permits are not issued, prevent some projects which developers and landowners may presently maintain do not require CWA permits.

Another, less discussed, alternative would be to expressly exclude wetlands and other non-territorial water bodies from federal CWA jurisdiction. At first blush such legislation may appear to remove such water bodies from environmental protection, but this is likely not going to be the case. States and local governments also regulate wetlands and would likely step in.[32] Reducing the scope of federal CWA jurisdiction would certainly provide clarity that is presently lacking on these issues.

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

[1] 33 U.S.C. § 1251 et seq.

[2] 126 S. Ct. 2208 (2006). 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).

[3] P. Mancusi-Ungaro, “Rapanos Update: EPA and Corps Issues New Rapanos Guidance and Supreme Court Denies Cert in U.S. v. Robison (McWane)”, ABA Water Quality and Wetlands Committee Newsletter, V.8, No. 2 (January 2009). For analysis of the Supreme Court’s decisions to deny petitions for certiorari in two cases that presented opportunities to clarify Rapanos, see J. Kray, Supreme Court Passes on Post-Rapanos Opportunities to Clarify “Navigable Waters” Jurisdiction, Marten Law Group Environmental News (May 9, 2007).

[4] The December 2, 2008 Guidance is available at http://www.usace.army.mil/CECW/Documents/cecwo/reg/cwa_guide/cwa_juris_2dec08.pdf. See also J. Kray “Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.” Marten Law Group Environmental News (June 6, 2007).

[5] 33 U.S.C. § 1251(a).

[6] 33 U.S.C. § 1311(a). CWA Section 404(a) authorizes the Secretary of the Army (through the Corps), or a state with an approved program, to issue permits “for the discharge of dredged or fill material into that navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). Section 402 authorizes the EPA (or a state with an approved program) to issue a National Discharge Elimination System (NPDES) permit for the discharge of pollutants other than dredged or fill material. 33 U.S.C. § 1342. The Corps and EPA share responsibility for implementing and enforcing Section 404. See, e.g. 33 U.S.C. § 1344(b)-(c).

[7] 33 U.S.C. § 1362(7).

[8] 33 C.F.R. § 328(a)(7); see also Rapanos v. United States, 126 S.Ct. 2208, 2237 (2006) (“In a regulation, the Corps has construed the term ‘waters of the United States ‘ to include not only waters susceptible to use in interstate commerce-the traditional understanding of the term ‘navigable waters of the United States’…- but also tributaries of those waters and, of particular relevance here, wetlands adjacent to those waters or their tributaries”).

[9] 33 C.F.R. § 328.3(a)(3)(emphasis added).

[10] 33 C.F.R. § 328.3(a)(5).

[11] 33 C.F.R. § 328.3(a)(7).

[12] 33 C.F.R. § 328.3(c); see also Rapanos, 126 S.Ct. 2208.

[13] Id.

[14] Id. at 2225.

[15] Id. at 2249.

[16] The Cundiff opinion is available here.

[17] Id.

[18] 505 F.3d 1208 (11th Cir. 2007). Captioned McWane, Inc. v. United States on petition for writ of certiorari.

[19] See J. Kray “Federal Circuits Split on Application of Supreme Court’s Rapanos Decision,” Marten Law Group Environmental News (December 6, 2006).

[20] See J. Kray “Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.” Marten Law Group Environmental News (June 6, 2007).

[21] The guidance focuses only on those Corps and EPA regulations that were at issue in Rapanos, namely 33 C.F.R. § 328.3(a)(1), (a)(5), and (a)(7) and 40 C.F.R. § 230.3(s)(1), (s)(5), and (s)(7). Thus, the Corps and EPA do not intend the guidance to affect other programs, such as the CWA section 402 National Pollution Discharge Elimination System (NPDES) program, that use “waters of the United States” to define federal jurisdiction.

[22] For more on the June 2007 guidance, see J. Kray “Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.” Marten Law Group Environmental News (June 6, 2007).

[23] K. Boyle, Wetlands: EPA, Army Corps satisfy no one with new guidance (E&E News PM December 5, 2008).

[24] See Corps and EPA Responses to the Rapanos Decision, Key Questions for Guidance Release (Key Questions Memo).

[25] For example, the guidebook for jurisdictional determinations (“JDs”) is eighty-five (85) pages long, with eight appendices, and the JD form itself is eight (8) pages long.

[26] See June 5, 2007 Memorandum for Director of Civil Works and US EPA Regional Administrators.

[27] 33 U.S.C. § 1362(7).

[28] See Clean Water Authority Restoration Act of 2003, S. 473, 108th Cong. (2003).

[29] See Clean Water Authority Restoration Act of 2005, H.R. 1356, 109th Cong. (2005).

[30] For more information on past Congressional action on this issue, see our article J. Kray, Democrats Introduce Controversial Legislation to Broaden EPA’s Clean Water Act Authority, Marten Law Group Environmental News (May 16, 2007).

[31] K. Boyle, Water Pollution: House Democrats urge Obama to make enforcement a priority (E&E News PM December 16, 2008), available at http://www.eenews.net/eenewspm (subscription required).

[32] For an overview of the history of state wetlands regulation, see Jonathan H. Adler, Wetlands, Waterfowl and the Menace of Mr. Wilson: Commerce Clause Jurisdiction and the Limits of Federal Wetland Regulation, 29 Envtl. L. 1, 47-54 (1999).

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