Supreme Court Dilutes Clean Water Act

In a recent newsletter, Rock the Earth discussed legal developments relating to the Clean Air Act. This month, we take a closer look at the Clean Water Act. On June 19, 2006, the United States Supreme Court announced its decision in the case of Rapanos v. United States, 126 S. Ct. 2208; 165 L. Ed. 2d 159 (2006). Rapanos (consolidated with the case of Carabell v. United States Army Corps of Engineers) involved questions regarding the scope of regulation under the Clean Water Act - the basic and crucial question of when the Federal government may act under the law. Rapanos represents the third major Supreme Court decision in this area, following United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985) and (Riverside Bayview) and Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC).

The scope of jurisdiction under the Clean Water Act has been hotly contested for decades. For Constitutional reasons, Congress limited the scope of the Clean Water Act to "navigable waters" of the United States. From its passage in 1972, federal and state agencies, courts and private parties have understood the Clean Water Act to regulate the discharge of pollutants into "traditional" navigable waters, their non-navigable tributaries, and wetlands adjacent to these bodies. Although many states have more expansive clean water programs than the federal government, the scope of federal regulation is crucial because it provides a "floor" that applies throughout the United States.

The Rapanos and Carabell cases presented the question of whether the Act covers wetlands adjacent to non-navigable tributaries of traditional navigable waters - in particular, whether section 404 of the Clean Water Act requires a person to obtain a permit from the U.S. Army Corps of Engineers (ACE) before discharging dredge or fill material into these wetlands. The Rapanos and Carabell cases involved an enforcement action for filling of such wetlands without a permit and the denial of a permit to fill such wetlands, respectively. In both cases, the lower courts upheld the exercise of jurisdiction by the federal government.

The ruling sadly disappointed anyone hoping that the Supreme Court would resolve these thorny issues. Further muddying the waters, the Supreme Court stated that the ACE regulations exceeded the Clean Water Act's authority, overturned the lower court's decisions and remanded the cases for further proceedings. A five-justice majority could not be found for any particular point of view on exactly why and how the wetlands regulations of the ACE, or their application, exceeded the authority granted by the Clean Water Act, however.

Justice Scalia wrote an opinion (joined by Chief Justice Roberts, and Justices Thomas and Alito) that the ACE rules exceed the authority of the Clean Water Act and that a surface connection to navigable waters was required for Clean Water Act jurisdiction. Scalia would roll back Clean Water Act protections, stating:

The phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams," "oceans, rivers, [and] lakes," Webster's New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

Slip Op. p. 2

Justice Scalia would also not protect the wetlands adjacent to non-navigable tributaries of traditional navigable waters:

Therefore, only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands, are "adjacent to" such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to "waters of the United States" do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a "significant nexus" in SWANCC. 531 U. S., at 167. Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: First, that the adjacent channel contains a "wate[r] of the United States," (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the "water" ends and the "wetland" begins.

Id., pp. 23-24 (emphasis in original).

Obviously, such a narrow reading of the statute ignores the basic fact that wetlands generally drain into the tributaries or other waters to which they are adjacent, and the health of the upstream reaches of watersheds is inseparably connected with the vitality of tributaries and their adjacent wetlands. Scalia's position that the Clean Water Act does not ever protect intermittent or ephemeral waterways is particularly troubling for western states.

Justice Kennedy wrote a solo opinion concurring in the judgment but varying from Justice Scalia's extremely narrow reading of the Clean Water Act:

It is true, as [Justice Scalia] indicates, that environmental concerns provide no reason to disregard limits in the statutory text, but in my view the plurality's opinion is not a correct reading of the text. The limits [Justice Scalia] would impose, moreover, give insufficient deference to Congress' purposes in enacting the Clean Water Act and to the authority of the Executive to implement that statutory mandate.

Kennedy, Slip Op. p. 21.

Justice Kennedy set out his interpretation of the Clean Water Act, referred to as the "significant nexus" test. Wetlands adjacent to non-navigable tributaries of navigable waters might be regulated under Justice Kennedy's opinion, so long as there is a "significant nexus" between the wetland in question and navigable water. In his opinion, neither Justice Scalia nor Justice Stevens addressed this crucial issue. Because Justice Kennedy's interpretation fell within the boundaries of Justice Stevens' dissenting opinion (indicating that five justices agreed that coverage under the Clean Water Act went at least this far, if not further), most observers agree that Justice Kennedy's opinion will be the guiding interpretation going forward.

Riverside Bayview and SWANCC establish the framework for the inquiry in the cases now before the Court: Do the Corps' regulations, as applied to the wetlands in Carabell and the three wetlands parcels in Rapanos, constitute a reasonable interpretation of "navigable waters" as in Riverside Bayview or an invalid construction as in SWANCC? Taken together these cases establish that in some instances, as exemplified by Riverside Bayview, the connection between a non-navigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a "navigable water" under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking. Because neither the plurality nor the dissent addresses the nexus requirement, this separate opinion, in my respectful view, is necessary.

Id., pp. 9-10

When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction. Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to non-navigable tributaries. Given the potential overbreadth of the Corps' regulations, this showing is necessary to avoid unreasonable applications of the statute.

Id., p. 25.

Justice Stevens (joined by Justices Ginsburg, Breyer and Souter), wrote an opinion that dissented from the judgment and diametrically opposed the Scalia opinion, stating that the ACE rules were within the authority of the Clean Water Act and that it was Congress's intent to broadly apply Clean Water Act to protection nations waters:

In my view, the proper analysis is straightforward. The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation's waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps' resulting decision to treat these wetlands as encompassed within the term "waters of the United States" is a quintessential example of the Executive's reasonable interpretation of a statutory provision. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984).

Our unanimous decision in [Riverside Bayview] was faithful to our duty to respect the work product of the Legislative and Executive Branches of our Government. Today's judicial amendment of the Clean Water Act is not.

Stevens, Slip Op. p. 2.

Seemingly alarmed by the costs involved, [Justice Scalia] shies away from Riverside Bayview's recognition that jurisdiction is not a case-by-case affair. I do not agree with [Justice Scalia's] assumption that the costs of preserving wetlands are unduly high. It is true that the cost of § 404 permits are high for those who must obtain them - but these costs amount to only a small fraction of 1% of the $760 billion spent each year on private and public construction and development activity. Sunding & Zilberman 80. More significant than the plurality's exaggerated concern about costs, however, is the fact that its omission of any discussion of the benefits that the regulations at issue have produced sheds a revelatory light on the quality (and indeed the impartiality) of its cost-benefit analysis. The importance of wetlands for water quality is hard to overstate. See, e.g., U. S. Congress, Office of Technology Assessment, Wetlands: Their Use and Regulation, OTA-206, pp. 43-61 (Mar. 1984)

Id., pp. 12-14 (footnotes omitted).

Because of the unsettled questions regarding Clean Water Act jurisdiction after the Rapanos decision, Rock the Earth will continue to monitor developments in this area, with the goal of broad protection for the waters of the United States, including navigable waters, their non-navigable tributaries, and wetlands adjacent to these bodies. All should be within the jurisdiction of the Federal government and subject to regulation by both the Environmental Protection Agency (EPA) and the ACE. Both the law and science support the fact these are "waters of the United States" under the Clean Water Act. Such waters are connected to jurisdictional surface waters and important to interstate commerce. These waters and wetlands are an integral part of the aquatic environment and, therefore, should be subject to the most stringent protections provided by the federal government through the EPA's and ACE's delegated authority under the Clean Water Act. To provide otherwise will simply undermine the intent of the federal Clean Water Act and put water quality as well as wildlife at risk.

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