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Current Issue
From The Hill
The Court Has Spoken – Now It’s Everybody Else’s Turn
by Beth Card, NEIWPCC
In the last edition of IWR, we examined Clean Water Act jurisdiction and the ramifications of the U.S. Supreme Court decision in the cases of Rapanos and Carabell. Governmental agencies and interest groups across the country continue to carefully track this issue, as questions surrounding significant nexus, continuous flow, adjacency and all the scenarios in the Supreme Court opinions are being interpreted, twisted, turned, and reexamined in lower courts across the country.
So much confusion exists over what the Scalia plurality meant or didn’t mean, over whether the Kennedy test could also be applied, and over how these tests ought to work in the field that it seems no clear answer exists. How are regulators and land owners to know when permits are needed for development, and what waters are protected or not protected? The Supreme Court’s opinions further muddied the already murky waters on Clean Water Act jurisdiction and left more than enough room for further legal challenge.
But remember what you learned in grade school about American government and our system of checks and balances? Since the judicial branch has spoken and continues to speak, it was to be expected that the executive and legislative branches would also have something to say.
From our partners in the executive branch: the U.S. EPA and the Army Corps of Engineers released a guidance memorandum on how their regional and field office staff should interpret and apply the Rapanos/Carabell decision in making jurisdictional determinations. In other words, the federal government has to figure out which waters are regulated and protected under the terms of the U.S. Supreme Court. The guidance was released in June, with the comment period ending on January 21, 2008. The guidance can be downloaded at www.epa.gov/owow/wetlands/guidance/CWAwaters.html.
The legislative branch is also weighing in. This spring, U.S. Representatives Oberstar (D-MN), Dingell (D-MI), and 170 cosponsors introduced the Clean Water Restoration Act; U.S. Senator Feingold (D-WI) introduced a similar bill in the Senate. The proposed legislation would amend the Clean Water Act by striking the phrase “navigable waters,” which is currently defined as waters of the United States and territorial seas, and replace it with the phrase “waters of the U.S.” That phrase would have a statutory definition based on current Corps and EPA regulations. This definition is very specific and contains the usual suspects such as lakes, rivers, and streams, but goes on to include wetlands, sloughs, and prairie pot holes in the definition, just to name a few.
Environmental groups, states, and industry are all reacting to the proposed bill—some in favor, some unequivocally opposed. The Association of State Wetlands Managers, many state agencies, and environmental advocacy groups support the move as a way to ensure that sensitive water body systems such as headwater streams and isolated wetlands are protected. Industry groups—the National Association of Homebuilders and the American Farm Bureau Federation among them—argue the legislation will impede development and cause permits to be required in cases where they were never required before. And a handful of states see the legislation as unnecessary and intrusive on state programs.
Further concerns exist over how the legislation may impact NPDES permitting requirements, even though the bill does include a clause that prevents any change in federal authority over agricultural irrigation, stormwater runoff at oil and gas exploration sites, and 404 requirements related to silviculture, ranching, and many other activities.
So, should we be concerned? Does this proposed legislation cast a wider net over what is covered under federal jurisdiction? To answer that, I urge you to keep in mind two things. First, this definition is not new. It already exists in EPA and Corps regulations. What is new is the idea of putting the definition into statute, making it part of the Clean Water Act. Second, the purpose of the legislation is to take the guessing game out of some of these cases. Certainly there will always be instances where a jurisdictional determination can or should be challenged, but the clearer the statute, the less room for argument.
At this juncture, much remains to be seen. We will wait and watch whether the sponsors in the House can acquire a simple majority (218 out of 435) to move the bill to the Senate. There are many, many more steps that need to happen before the Clean Water Act is amended and the definition of waters of the United States put into place. So much could happen along the way. We’ll keep you posted.
Beth Card (bcard@neiwpcc.org) is NEIWPCC’s Director of Water Quality Programs.