CSG Webinar: The Clean Water Act and Waters of the U.S. February 21, 2013
CSG’s webinar, “The Clean Water Act and Waters of the U.S.,” helped state policymakers unravel the complex legal issues involving the limits and scope of federal regulatory jurisdiction over “navigable waters of the U.S.” in the Clean Water Act. The timing of the webinar is important as the Obama administration announced its intention December 2012 to pursue a federal rulemaking that may ultimately chart a path forward for states and other stakeholders after two ambiguous decisions made by the Supreme Court and more than four years of agency guidance.
The webinar featured two top-notch federal experts: Stacey Jensen, a regulatory program manager at the U.S. Army Corps of Engineers headquarters, and Donna Downing, an attorney in the U.S. Environmental Protection Agency's Office of Water.
The presentation began with an overview of how the federal government regulates activities under the Clean Water Act through the Army Corps of Engineers and the EPA. The modern regulatory framework established in 1972 under the Clean Water Act limits the federal government’s jurisdictional reach to “navigable waters,” which was defined by statute to mean “the waters of the United States, including the territorial seas.” As with many ambiguities created by Congressional directives, the underlying text did not define the limits of the gray area where regulators, people, and activities intersect – especially in tributaries or isolated waters or with wetlands that may have a potential ecosystem nexus to “navigable waters.” To be considered “waters of the U.S.” under the Act they must be:
- Traditionally navigable waterways;
- Could affect interstate commerce if used, degraded, or destroyed;
- Involve impoundment structures like dams in jurisdictional waters;
- Tributaries of jurisdictional waters;
- Territorial seas; and
- Wetlands adjacent to jurisdictional waters
There are specific exclusions from regulation under “waters of the U.S.” for waste water treatment plants and prior converted cropland that is defined under different statutes at the U.S. Department of Agriculture.
The presenters detailed a history of Supreme Court cases that substantially changed and altered the jurisdictional scope of the Act and also precipitated the development of regulatory guidance that fundamentally shaped public policy. Beginning with the 1985 Riverside Bayview Homes case, the Court determined that wetlands adjacent to traditional navigable waters would fall under the auspices of federal oversight even if they do not appear to be “navigable” in the traditional sense of the word. This decision helped spur the issuance of the 1986 “Migratory Bird Rule” by the Corps giving it permitting jurisdiction over waters that were used to irrigate crops sold in interstate commerce and over waters that are or could be used as a habitat by migratory birds or endangered species. Ultimately the rule was struck down by the Court in a 5-4 vote (Solid Waste Agency of Northern Cook County v. USACE) in part for infringing on traditional state authority over land and water use and that federal regulation under the Clean Water Act had to have a connection to the navigability of isolated wetlands. In split decisions over two cases (Rapanos and Carabell) the Supreme Court essentially set up two guidance standards for federal regulators. A plurality opinion issued by Justice Scalia said that federal jurisdiction only covers wetlands connected to permanent bodies of water like streams, rivers, and lakes by a continuous surface connection. Justice Kennedy, issued his own opinion said that there was federal jurisdiction over “waters of the U.S.” when there was a more than a speculative effect on the chemical, physical, or biological integrity of the water--in essence, substantial “nexus” between a wetland and a traditional navigable water. The practical implication, however, involved using an ambiguous ecological test.
This left federal regulators with a perplexing scenario because there are no statutory terms for “tributary” or “significant nexus.” According to the presentation, current federal guidance would exclude over 15,000 bodies of water from federal jurisdiction. In May 2011, the Obama administration proposed new draft guidance with the intent of clarifying the scope of the “waters of the U.S.” and to address concerns about inconsistent interpretation of enforcement in order to improve predictability for states, industries, and other stakeholders; over 230,000 public comments were received on the rules, showing the large interest from the regulated community that will be impacted. In December 2012, that set of final draft guidance was sent to the Office of Management and Budget where it is still under interagency review.
The Clean Water Act and Waters of the U.S.