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Five Years After Rapanos – EPA Prepares New Clean Water Act Jurisdictional Guidance

February 3, 2011

Five years after the United States Supreme Court struggled with resolving the scope of Clean Water Act (“CWA”)[1] jurisdiction in Rapanos v. United States,[2] the issue remains “Clear as Mud.” See J. Kray, Clear as Mud: Newest Ninth Circuit Case Interpreting Rapanos Test for Clean Water Act Jurisdiction Offers Little Clarity Environmental News (September 12, 2007). EPA, Congress, and dozens of lower courts have tried – without a great deal of success – to clarify the meaning of the Supreme Court’s 4-4-1 plurality decision. As we approach the five year anniversary of Rapanos, parties seeking CWA permits and regulators reviewing those permit applications are still left to ponder which wetlands, ponds, streams, and other water bodies are federally regulated.

The reason for the continuing uncertainty is evident in the Court’s decision itself, which could not produce a clear majority among the members of the Court. The more than 120 lower court decisions citing the case often reach contrary conclusions.[3] Various parties have tried and failed to obtain Supreme Court review; eight petitions for writs of certiorari to the Supreme Court have been denied.[4]

Congress has tried four separate times to resolve the controversy, which potentially affects an estimated 20 million acres of wetlands and tributary and isolated waters, prairie potholes, and mudflats.[5]  All four times, the legislation has failed to pass.

EPA issued guidance in 2007, but it created more controversy than it resolved.  See J. Kray, Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps, Marten Law Environmental News (June 6, 2007). This year, in yet one more attempt, EPA has prepared a new draft “Clean Water Protection Guidance” (2011 Guidance) document. The new EPA guidance – which is not a regulation – is expected to be issued this month. It reportedly takes an expansive view of federal CWA jurisdiction. But whether the new guidance provides any real benefit – particularly in light of recent cases challenging EPA’s penchant for attempting to regulate without regulations (see related story in this edition) – is doubtful. More likely, it will simply engender further litigation, until the Supreme Court or Congress eventually do decide to step in.

Background

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.[6] As a result, CWA permitting and enforcement actions encountered an unresolved jurisdictional issue about the reach of federal jurisdiction over wetlands and non-navigable waterbodies. The Supreme Court held in United States v. Riverside Bayview Homes[7]that waters of the United States subject to federal regulation include tributaries of traditionally navigable waters and wetlands adjacent to navigable waters and their tributaries. In 2001, however, the Supreme Court issued a decision in Solid Waste Agency of Northern Cook County v. U.S. (SWANCC),[8] that called into question the breadth of the CWA’s jurisdiction. In SWANCC, the courtheld in a 5-4 opinion that the provision of the CWA which requires those discharging fill material into navigable waters to obtain a permit from the Corps does not extend to isolated, abandoned sand and gravel pits with seasonal ponds, which provide migratory bird habitats.[9]

Five years after SWANCC, the issue again reached the Supreme Court in Rapanos.[10] Justice Scalia’s plurality decision in Rapanos narrowly interpreted “waters of the United States,” and would have removed many wetlands from the U.S. Army Corps of Engineers’ (Corps) and EPA’s CWA jurisdiction by requiring a continuous surface water connection to navigable waters.[11] The plurality opinion failed, however, to command a majority, and was specifically rejected in Justice Kennedy’s concurrence. Justice Kennedy found 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 Corps to establish a “significant nexus” between wetlands and navigable waters on a case-by-case basis.[12] See J. Kray, Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided, Marten Law Environmental News (June 21, 2006).

Failed Congressional Efforts to Amend the CWA

The idea of amending the CWA to expressly include wetlands and other non-navigable waters was proposed in 2003,[13] 2005,[14] 2007,[15] and 2009. The last effort, in 2009 and called the Clean Water Restoration Act (“CWRA”), would have amended the CWA by replacing the key jurisdictional phrase “navigable waters” with “waters of the United States,”[16] 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.[17]

If that legislation had passed, EPA would have been given the authority to regulate water quality, stormwater discharges, water supply and infrastructure, and all other activities that have the potential to create water pollution in covered waters. Such waters have not completely escaped regulation, but they have, to date, tended to be regulated by state and local governments.

The CWRA never made it to the House floor. The likelihood that any proposal to amend the CWA will pass is now diminished and likely to be dropped from the 2011 Congressional agenda as a result of the fall 2010 elections, particularly the defeats of Rep. James Oberstar (D-Minn.) and Sen. Russ Feingold (D-Wis.), prime sponsors and proponents of the CWRA.

Failed Administrative Efforts Interpreting Rapanos

The Corps and EPA have also attempted to clarify the scope of federal CWA jurisdiction. In 2007, those agencies issued a joint guidance memorandum (2007 Guidance) to assist their personnel in determining when to exercise CWA jurisdiction over certain wetlands and related waterbodies. The Corps and EPA determined that the agencies would use – on a case-by-case basis – both Justice Scalia’s “continuous surface connection” test and Justice Kennedy’s “significant nexus” test in determining CWA jurisdiction.[18] Under the 2007 Guidance, the agencies divided waters into three categories: jurisdictional, possibly jurisdictional, and not jurisdictional.

The 2007 decisions by the Corps and the EPA only served to further muddy the CWA jurisdictional waters.[19] An April 30, 2009 report from the EPA Office of Inspector General issued in response to a request from Rep. Oberstar, then 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.”[20]

EPA’s Planned 2011 CWA Jurisdictional Guidance

On December 20, 2010, EPA and the Corps sent a draft 2011 Guidance to the White House Office of Management and Budget (OMB) that would reportedly “clarify Clean Water Act responsibilities.”[21] The document has not yet been publicly released. Under Executive Order 12866, OMB has up to 90 days to review the 2011 Guidance and suggest changes for the agencies to make before the Guidance is released. EPA and the Corps “will also provide an opportunity for public comment on this draft guidance.”[22] The draft 2011 Guidance is likely to be published by mid-February 2011.[23]

Early reports are that the 2011 Guidance will say that for Corp-issued CWA Section 404 dredge-and-fill permits the agencies should use only Justice Kennedy’s “significant nexus” to determine CWA jurisdiction over non-navigable wetlands and tributaries.[24] The 2011 Guidance apparently will not address CWA jurisdiction over waste treatment systems or prior converted croplands, contentious issues that the agencies intend to address in future agency guidance documents.[25]

Representatives from industry and environmental groups argue that the proposed 2011 Guidance is not binding on the regulated community and are, therefore, urging EPA to resolve uncertainty over the scope of CWA jurisdiction by issuing a formal regulation.[26] Proponents of a formal regulation over guidance cite to the Rapanos opinions of Supreme Court Chief Justice John Roberts and Justice Stephen Breyer calling for EPA to clarify the scope of the CWA’s jurisdiction through a formal rule.[27] The 2011 Guidance may be an interim step toward formal regulation. In contrast, Congressional Republican aides say that guidance expanding CWA jurisdiction would only lead to legislation to narrow the CWA’s scope.[28]

For more information on the proposed 2011 Guidance and Marten Law’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 Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided.

[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).

[4] Id. 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).

[5] See Legislative Solution Possible to Resolve Uncertainty Surrounding Clean Water Act Jurisdiction,Marten Law Environmental News (February 13, 2009).K. Boyle, Wetlands: Groups urge legislative ‘fix’ for regulatory muddle (E&E News April 14, 2009), available at http://www.eenews.net/ (subscription required).

[6] 33 U.S.C. § 1362(7).

[7] 474 U.S. 121 (1985).

[8] 531 U.S. 159 (2001).

[9] Id.

[10] 126 S. Ct. 2208 (2006).

[11] Id. at 2225.

[12] Id. at 2249.

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

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

[15] In 2007, 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,”

[16] See Clean Water Restoration Act, S.787, sec. 25, 111th Cong. (2009).

[17] Id.

[18] Wetlands: EPA, Army Corps issue long-sought regulatory guidance, Greenwire (June 5, 2007) (subscription required).

[19] More 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.

[20] K. Boyle, Wetlands: Congress preps for regulatory battle (E&E News May 5, 2009), available at http://www.eenews.net/ (subscription required).

[21] N. Juliano, EPA Readies Guidance Aimed at Expanding Clean Water Act Jurisdiction (InsideEPA January 11, 2011) (subscription required).

[22] Id.

[23] J. Heltman, Industry, Activists Push EPA For Rule, Not Guidance, On Water Law’s Scope, (InsideEPA January 21, 2011) (subscription required).

[24] Id.

[25] Id. For more on CWA issues regarding prior converted croplands, see J. Kray, Farm Bureau Suit Seeks to Reinstate Exclusion From Wetland Regulation for Former Farmlands, Marten Law Environmental News (April 28, 2010).

[26] J. Heltman, Industry, Activists Push EPA For Rule, Not Guidance, On Water Law’s Scope, (InsideEPA January 21, 2011) (subscription required).

[27] Id.

[28] N. Juliano, EPA Readies Guidance Aimed at Expanding Clean Water Act Jurisdiction (InsideEPA January 11, 2011) (subscription required).

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