2007 Restoration Act

A reflection of lawmaker intent or a commerce clause showdown?

The Cuyahoga River burned in 1969. Although the fire lasted only 30 minutes, the oil-slick that was the Cuyahoga, along with similarly degraded waterways across the country, showed that the states were failing to protect the health and vitality of the nation’s waters. Congress reacted with the passage of the Federal Water Pollution Control Act Amendments of 1972 (CWA).

This CWA forbids the addition of a pollutant (which has been defined to include nearly any substance) into the “navigable waters” of the U.S. without a permit. Thus, federal agencies have jurisdiction under CWA only when the waters are “navigable,” and the definition of “navigable waters” has become a focal point for interests that would like to minimize the reach of CWA. A recent U.S. Supreme Court decision, Rapanos v. United States, did little to clarify the jurisdictional dispute.

Clean Water Restoration Act of 2007 The restoration bill introduced by U.S. Rep. James Oberstar (D-Minn.) proposes to “reaffirm the original intent of Congress” in enacting the 1972 legislation. The Oberstar amendment would apply CWA jurisdiction to:

[A]ll 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 are subject to the legislative power of Congress under the Constitution.

At the time of this writing, the bill garnered the support of 169 cosponsors and, if passed, would remove all references to “navigable water” from CWA and replace them with “waters of the United States.” A companion bill (S 1870), offered by Sen. Russ Feingold (D-Wis.) and 19 cosponsors, contains the same provisions.

Section 502 of CWA defines the term “navigable waters” as “the waters of the United States, including the territorial seas” and this term has defined federal authority and control over intrastate and interstate water for well over 125 years. The Daniel Ball case decided by the Supreme Court in 1870 declared that “navigable rivers in law . . . are navigable in fact” and used this as a basis for its decision upholding the Commerce Clause authority of the United States to license vessels carrying goods on the Grand River in Michigan that were destined for other states.

Given the scope of CWA—to eliminate all pollutants from the nation’s waters—it is unreasonable to assume that Congress, in passing the act, had the limited definition of navigability enunciated in the Daniel Ball case in mind.

The Oberstar-Feingold definition appears to resurrect the definition enunciated by federal district courts in early CWA jurisprudence— and then go beyond it. In 1975, the U.S. District Court for the District of Columbia ruled in Natural Resources Defense Council v. Callaway that in enacting CWA, Congress had asserted federal jurisdiction over the nation’s waters to the “maximum extent permissible under the Commerce Clause.” After the Callaway case, the agencies adopted a broad interpretation of their authority. And, for the most part, the U.S. Army Corps of Engineers’ interpretation has been given deference by reviewing courts. However, in 2001 the Supreme Court issued its opinion in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC).

Migratory birds find their way into commerce Almost everyone now is familiar with the issue in SWANCC: could the Corps maintain jurisdiction over abandoned sand and gravel pits in Illinois that had become permanent and seasonal ponds frequented by migratory birds? The legal “hook” for the Corps was that its jurisdiction must extend to such waters, even if they were intrastate, because migratory birds crossed state lines. The Commerce Clause is premised on interstate activities, and migratory birds cross state lines, therefore, birders (and others engaged in commerce, however minimal) can be presumed to cross state lines.

The Supreme Court in SWANCC refused to read the term “navigable” as broadly as the Corps, imposing instead a more limited interpretation of the Corps’ jurisdiction. The court held that the authority of Congress under the Commerce Clause was broad and conceded that jurisdiction under CWA was more expansive than traditional notions of navigability, but it was not without limitation. The court failed to see a congressional mandate under Section 404 that would allow jurisdiction over two abandoned sand and gravel pits in an Illinois county whose only connection to navigable waters and interstate commerce was the fact that they provided habitat for migratory birds.

More recently, the Supreme Court in Rapanos v. United States had the opportunity to determine whether wetlands (lying near engineered ditches and drains) that eventually emptied into navigable-in-fact waters were subject to the Corps’ 404 jurisdiction. Unfortunately, this opinion did little to determine the jurisdictional scope of CWA because of significant splits within the court.

There were five opinions in this case, but only three warrant further discussion: the first opinion was joined by four justices (Justice Scalia, Chief Justice Roberts, and Justices Thomas and Alito) and held that the engineered conduits that carried intermittent flows were beyond the scope of navigable waters as defined by CWA and, therefore, wetlands adjacent to these remote waters were beyond the Corps’ jurisdiction. The second, and dissenting opinion, endorsed by four justices (Stevens, Souter, Ginsberg, and Breyer) would have had the case come out the other way: that the engineered conduits and adjacent wetlands were “navigable waters” and thus supported exercise of Corps’ jurisdiction. As is so often the case in Supreme Court jurisprudence these days, Justice Kennedy authored his own opinion, and effectively decided the case. Kennedy’s opinion called for a case-bycase determination of whether the waters in question have a “significant nexus” to waters that are navigable-in-fact. Effectively, agencies will have to apply the Kennedy “significant nexus” test every time there is a question about CWA jurisdiction.

Does the restoration bill solve the problem? No. As noted above, the Rapanos case does not put to rest the jurisdictional quagmire surrounding CWA. The stakes are real. As Justice Scalia noted in his opinion in Rapanos, the burden of the federal regulation on those involved is significant in both time and expense. In addition, fines associated with unpermitted discharges can be as much as $27,000 per day, leaving the undefined state of the law even more troublesome. Moreover, the requirement to obtain Section 402 or 404 permits, in essence, federalizes the activity, raising the potential for additional requirements under the National Environmental Policy Act, the Endangered Species Act, and the Fish and Wildlife Coordination Act.

Likewise, Justice Kennedy’s case-by-case determination gives little certainty to parties planning projects that may implement Section 404 permitting. The Rapanos decision has also made it hard for the agencies to adopt meaningful guidelines and rules for CWA permitting.

While the restoration bill would remove many of the definitional ambiguities, its removal of “navigable waters” altogether—and thus the act’s Commerce Clause underpinnings—is likely to unveil yet another stage for conflict. Congress cannot confer more authority on federal agencies than it has to confer under the Constitution. Although the Commerce Clause has provided a wide net capable of supporting the weight of numerous federal regulations, the decisions in Rapanos may indicate that the current Supreme Court would not support such a broad interpretation of CWA jurisdiction.

This article originally appeared in the 12/01/2007 issue of Environmental Protection.

About the Author

Jason V. Turner practices with the law firm of White & Jankowski, LLP in Denver. He assists clients in the areas of water rights, water quality, and administrative law.

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