Order Code RL33263
CRS Report for Congress
Received through the CRS Web
The Wetlands Coverage of the Clean Water Act
is Revisited by the Supreme Court:
Rapanos and Carabell
February 2v. United States
Updated September 12, 2006
Robert Meltz
Legislative Attorney
American Law Division
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
The Wetlands Coverage of the Clean Water Act
is Revisited by the Supreme Court:
Rapanos and Carabellv. United States
Summary
Twice in the past, the Supreme Court has grappled with issues as to the
geographic scope of the wetlands permitting program in the federal Clean Water Act
(CWA). On October 11, 2005, the Supreme Court agreed to hear two more cases
(consolidated by the Court) addressing such questions — both from the Sixth
Circuit. In Rapanos v. United States, the issue is whether the permitting program
applies to wetlands that are only distantly connected to traditional navigable waters
— i.e., or at least do not actually abut them. In Carabell v. U.S. Army Corps of
Engineers, the issue is whether the program reaches wetlands that are not
hydrologically connected to any “water of the United States,” the CWA term that
defines the act’s geographic reach. Both cases also raise a constitutional question:
assuming that the disputed CWA coverage exists, did Congress, in enacting the
CWA, exceed its authority under the Commerce Clause of the Constitution?
Implicating hot-button legal issues such as federal-state relations under the
Commerce Clause and private property rights, and affecting the reach of several
CWA provisions outside the permitting program, the Court’s decision is sure to be
of great interest.
The policy question associated with these cases — what should be the outer
geographic limit of CWA jurisdiction and what are the consequences of restricting
the scope of regulatory protection under the act — has challenged regulators,
landowners and developers, and policymakers for more than 30 years. The answer
is important, because as noted it determines the extent of federal June 19, 2006, the Supreme Court rendered a third decision, Rapanos
v. United States, on appeal from two Sixth Circuit rulings consolidated by the Court.
The Sixth Circuit rulings offered the Court a chance to clarify the reach of CWA
jurisdiction over wetlands adjacent only to nonnavigable tributaries of traditional
navigable waters — including tributaries such as drainage ditches and canals that
may flow intermittently. (Jurisdiction over wetlands adjacent to traditional navigable
waters was established in one of the two earlier decisions.)
The Court’s decision provided little clarification, however, splitting 4-1-4. The
four-justice plurality decision, by Justice Scalia, said that the CWA covers only
wetlands connected to relatively permanent bodies of water (streams, rivers, lakes)
by a continuous surface connection. Justice Kennedy, writing for himself, would
have demanded a substantial nexus between the wetland and a traditional navigable
water, using an ambiguous ecological test. Justice Stevens, for the four dissenters,
would have upheld the current broad reach of Corps of Engineers/EPA regulations.
Because no rationale commanded the support of a majority of the justices, lower
courts will have to wrestle with the proper rule of decision to extract from Rapanos
for resolving future cases.
The legal and policy questions associated with Rapanos — regarding the outer
geographic limit of CWA jurisdiction and the consequences of restricting that scope
— have challenged regulators, landowners and developers, and policymakers for
more than 30 years. The answer may determine the reach of CWA regulatory
authority not only for the wetlands permitting program but also for several other
CWA programs; the CWA has one definition of “navigable waters” that applies to
the entire law. Critics of the regulatory program want the federal government to give
up jurisdiction over most non-navigable tributaries and wetlands adjacent thereto,
and allow other federal and state programs to fill whatever gap such changes would
createhad hoped that the Supreme Court’s
decision would provide a “bright line” jurisdictional standard, but the 4-1-4 ruling
did not do so and has led to pressure for guidance, new regulations, or possibly
congressional action to clarify the current questions.
While regulators and the regulated community debate the legal dimensions of
federal jurisdiction under the CWA, scientists contend that there are no discrete,
scientifically supportable boundaries or criteria along the continuum of wetlands to
separate them into meaningful ecological or hydrological compartments. Wetland
scientists believe that all such waters are critical for protecting the integrity of waters,
habitat, and wildlife downstream. Changes in the limits of federal jurisdiction
highlight the role of states in protecting waters not addressed by federal law. From
the states’ perspective, federal programs provide a baseline for consistent, minimum
standards to regulate wetlands and other waters. Most states are either reluctant or
unable to take steps to protect non-jurisdictional waters through legislative or
administrative action.
A Supreme Court decision in Rapanos and Carabell is expected by June 2006.
This report will be updated as developments warrant.
Contents
Background
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Sixth Circuit Decisions in Rapanos and Carabell . . . . . . . . . . . . . . . . . . . . . 2
Rapanos v. United States: Distant Hydrological Connection4
The Supreme Court Decision . . . . . . . . . . . . . . . . . . . . . . 4
Carabell v. U.S. Army Corps of Engineers: No Hydrological Connection. . . . . . . . . . . . . . . . . . . 56
Legal Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Policy Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 710
Filling the Gaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
The Wetlands Coverage of the Clean Water
Act is Revisited by the Supreme Court:
Rapanos and Carabell
On October 11, 2005, the Supreme Court agreed to review two Sixth Circuit
decisions addressing the outer bounds of the geographic coverage of the federal
Clean Water Act (CWA).1 In Rapanos v. United States,2 the issue is whether the
CWA’s wetlands permitting program applies to wetlands that are only distantly
connected to traditional navigable waters — or at a minimum, do not abut them. In
Carabell v. U.S. Army Corps of Engineers,3 the issue is whether that same program
reaches wetlands that are not hydrologically connected to any “water of the United
States,” the CWA phrase defining the geographic reach of the act. Both cases also
raise a constitutional question: if the disputed CWA coverage exists, did Congress
exceed its authority under the Commerce Clause of the Constitution?4
In taking these separate cases (consolidated by the Court for oral argument and
decision), the Court revisits a CWA conundrum with which it and many other courts
have wrestled for three decades: which wetlands are to be regulated under the
federal CWA and which fall solely within the jurisdiction of the states in which they
v. United States
On June 19, 2006, the Supreme Court decided Rapanos v. United States.1 The
decision addressed the asserted jurisdiction of the U.S. Army Corps and EPA over
wetlands adjacent to “waters of the United States,” the problematic phrase used by
the Clean Water Act (CWA)2 to define the geographic scope of the act’s wetlands
permitting program.
Actually, two separate decisions, consolidated for purposes of argument and
decision, were before the Court. Both were from the Sixth Circuit, and both involved
Michigan wetlands. In Rapanos v. United States,3 the issue was whether the CWA’s
wetlands permitting program applies to wetlands that are only distantly connected to
traditional navigable waters — or at a minimum, do not abut them. In Carabell v.
U.S. Army Corps of Engineers,4 the issue was whether that same program reaches
wetlands that are not hydrologically connected to any traditional navigable water.
Both cases also raised a constitutional question: if the disputed CWA coverage exists,
did Congress exceed its authority under the Commerce Clause of the Constitution?5
In taking these separate cases, the Court was revisiting a CWA conundrum with
which it and many other courts had wrestled for three decades: which wetlands are
to be regulated under the federal CWA and which fall solely within the jurisdiction
of the states in which they are located.
Wetlands, with a variety of physical characteristics, are found throughout the
country. They are known in different regions as swamps, marshes, fens, potholes,
playa lakes, or bogs. Although these places can differ greatly, they all have
distinctive plant and animalvegetative assemblages because of the wetness of the soil. Some
wetland wetland
areas may be continuously inundated by water, while other areas may not be
flooded flooded
at all. In coastal areas, flooding may occur on a daily basis as tides rise and
fall.
1
fall.
1
126 S. Ct. 2208 (2006).
2
33 U.S.C. §§ 1251-1387.
23
United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), cert. granted sub nom. Rapanos
v. v.
United States, 74 U.S.L.W. 3228 (Oct. 11, 2005) (No. 04-1034).
3
4
Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004), cert. granted
under same name, 74 U.S.L.W. 3228 (Oct. 11, 2005) (No. 04-1384).
45
The Commerce Clause, U.S. Const. art. I, § 8, cl. 3, gives the Congress authority “To
regulate Commerce ... among the several States ....”
CRS-2
Background
From the earliest days, Congress grappled with where to set the outer bound of
federal authority over the nation’s waterways, particularly with regard to uses of
waterways that impaired navigation. The phrase Congress often used to define
federal authority was “navigable waters of the United States.”56 The concept proved
an elastic one: in Supreme Court decisions from the early to mid-twentieth century,
“navigability” underwent a substantial expansion “from waters in actual use to those
which used to be navigable to those which by reasonable improvements could be
made navigable to nonnavigable tributaries affecting navigable streams.”67
Notwithstanding the Court’s enlargement of “navigability,” the Congress
considering the legislation that became the CWA of 1972719728 felt that the term was too
constricted to define the reach of a law whose purpose was not maintaining
navigability, but rather preventing pollution. Accordingly, Congress in the CWA
retained the traditional term “navigable waters,” but defined it to mean “waters of the
United States”89 — seemingly minimizing, if not eliminating, the constraint of
navigability. The
conference report said that the new phrase was intended to be
given “the broadest
possible constitutional interpretation.”910
Among the provisions in the 1972 clean water legislation was section 404,1011
which together with section 301(a) requires persons wishing to discharge dredged or
fill material into “navigable waters,” as newly defined, to obtain a permit from the
U.S. Army Corps of Engineers.1112 The Corps’ initial response to section 404 was to
apply it solely to waters traditionally deemed navigable (which included few wetland
areas), despite the broadening “waters of the United States” definition and conference
report language. Under a 1975 court order,1213 however, the Corps issued new
regulations that swept up a range of wetlands.1314 This broadening ushered in a debate,
continuing today, as to which wetlands Congress meant to reach in the section 404
56
See in particular two precursors of the CWA: Rivers and Harbors Act of 1899 §§ 10 (33
U.S.C. § 403), and 13 (33 U.S.C. § 407). Section 13 covers tributaries of navigable waters
as well.
67
William H. Rodgers, Jr., Handbook on Environmental Law 401 (1977) (footnotes omitted).
78
P.L. 92-500. To be precise, the 1972 enactment was titled the Federal Water Pollution
Control Act Amendments of 1972. It was only after the 1977 amendments thereto that the
act as a whole became known as the Clean Water Act.
89
CWA § 502(7), 33 U.S.C. § 1362(7).
910
Conference report S.Rept. 92-1236 at 144, reprinted in 1972 U.S. Code Cong. & Admin.
News 3776, 3822.
10
11
33 U.S.C. § 1344.
1112
Section 301(a), 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant, except in
compliance with various CWA sections, including section 404.
1213
NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
1314
40 Fed. Reg. 31320 (July 25, 1975), amending 33 C.F.R. part 209.
CRS-3
permit program. At one time or another, the debate has occupied all three branches
of the federal government.
As the title of this report indicates, Rapanos and Carabell are not the Supreme
Court’s first foray into the section 404 jurisdictional quagmire. In 1985, in Riverside
Bayview Homes, Inc. v. United States,1415 the Court unanimously upheld as reasonable
the Corps’ extension of its section 404 jurisdiction to “adjacent wetlands” — as one
component of its definition of “waters of the United States.”1516 Under the Corps
regulations, adjacent wetlands are wetlands adjacent to navigable bodies of water or
interstate waters, or their tributaries.1617 The Court reasoned that the water-quality
objectives of the CWA were broad and sensitive to the fact that water moves in
hydrologic cycles. Due to the frequent difficulties in defining where water ends and
land begins, the Court could not say that the Corps’ conclusion that adjacent wetlands
are inseparably bound up with “waters of the United States” was unreasonable,
particularly given the deference owed to the Corps’ and EPA’s ecological expertise.
Also persuasive was the fact that in considering the 1977 amendments to the CWA,
Congress vigorously debated but ultimately rejected amendments that would have
narrowed the Corps’ asserted jurisdiction under section 404.
In 2001, the Court returned to the geographic reach of section 404. The
decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers (SWANCC)1718 directly involved the “isolated waters” component of the
Corps’ definition of “waters of the United States,”1819 rather than the “adjacent
wetlands” component at issue above. “Isolated waters,” in CWA parlance, are waters
that are not traditional navigable waters, are not interstate, are not tributaries of the
foregoing, and are not hydrologically connected to navigable or interstate waters or
their tributaries - — but whose “use, degradation, or destruction [nonetheless] could
affect interstate commerce.”1920 Illustrative examples include “intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, [or]
prairie potholes”2021 with an interstate commerce nexus. The issue before the Court
was whether “waters of the United States” is broad enough to embrace the Corps’
assertion of jurisdiction over such “isolated waters” purely on the ground that they
are or might be used by migratory birds that cross state lines — known as the
Migratory Bird Rule.
In a 5-4 ruling, the majority opinion held that the Migratory Bird Rule was not
authorized by the CWA. The decision’s rationale was much broader, however,
appearing to preclude federal assertion of 404 jurisdiction over isolated waters on any
14,
nonnavigable, intrastate waters on any basis — indeed, over wetlands not adjacent
15
474 U.S. 121 (1985).
1516
33 C.F.R. § 328.3(a)(7). An identical EPA definition is at 40 C.F.R. § 230.3(s)(7).
1617
See note 15, supra.
1718
531 U.S. 159 (2001).
1819
33 C.F.R. § 328.3(a)(3). An identical EPA definition is at 40 C.F.R. § 230.3(s)(3).
1920
See note 18, supra.
2021
See note 18, supra (emphasis added).
CRS-4
basis — indeed, over wetlands not adjacent to “open water.”2122 This disparity
between the Court’s holding and its rationale has
occasioned considerable litigation
in the lower courts, the majority of which opts opted
for a narrow reading of SWANCC,
hence a broad reading of remaining Corps
jurisdiction under section 404. Such
uncertainties as to the Corps’ isolated waters
jurisdiction after SWANCC has focused
focused attention on the alternative bases in Corps
regulations for asserting 404 jurisdiction
— such as the existence of “adjacent
wetlands.” Neither the Corps of Engineers nor
EPA, however, has modified its section
404 regulations since SWANCC.23
The new spotlight on the concept of adjacent wetlands is the backdrop for the
Supreme Court’s consideration of Rapanos and Carabell, two “adjacent wetlands”
cases.
Rapanos v. United States:
Distant Hydrological ConnectionThe Sixth Circuit Decisions
in Rapanos and Carabell
Although the Supreme Court consolidated Rapanos and Carabell, the issues in
each case as to Corps and EPA “adjacent wetlands” jurisdiction are slightly different.
Rapanos v. United States: wetlands adjacent to a tributary (man-made ditch) that
ultimately flows into traditional navigable waters.
The Rapanos case arose as a civil enforcement action filed by the United States
in 2000, seeking penalties for the filling of three Michigan wetlands without a section 404
404 permit. (In a separate federal criminal action, JohnMr. Rapanos was convicted in 1995
1995 of illegally discharging fill material into protected wetlands.) As in Riverside
Bayview, the issue was the Corps’ jurisdiction under the “adjacent wetlands”
component of its regulations defining “waters of the United States.” In particular,
plaintiffs argued that SWANCC did more than throw out the Migratory Bird Rule; it
also barred section 404 regulation of wetlands that do not physically abut a traditional
navigable water.
In ruling that section 404 reached the Rapanos’ wetlands, the Sixth Circuit held
that immediate adjacency of the wetland to a traditional navigable water is not
required. Rather, what is needed is a “significant nexus” — a ubiquitous phrase in
section 404 litigationcourt decisions lifted from SWANCC’s explanation of Riverside Bayview22 —
Bayview24 — between the wetlands and traditional navigable waters. “Significant
nexus,” in turn,
can be satisfied by the presence of a “hydrological connection.”
Thus, the fact that
the Rapanos’ wetlands had surface water connections to nearby tributaries of
22
In SWANCC dictum, the Court stated: “In order to rule for the [Corps of Engineers], we
would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent
to open water. But we conclude that the text of the statute will not allow this.” 531 U.S.
at 168 (emphasis in original).
23
The agencies did consider initiating a rulemaking to consider “issues associated with the
scope of waters that are subject to the Clean Water Act” in light of SWANCC, 68 Fed. Reg.
1991 (2003), but the effort was abandoned in December 2003.
24
SWANCC, 531 U.S. at 167.
CRS-5
tributaries of traditional navigable waters was sufficient for section 404 jurisdiction.
Nor did it
seem to matter to the court that the hydrological connection to traditional navigable
navigable waters was, for at least one of the Rapanos wetlands, distant — surface
waters from
this wetland flow into a man-made drain immediately north of the site,
which empties
into a creek, which flows into a navigable river. According to the
record, this
wetland is between eleven and twenty miles from the nearest navigable-innavigablein-fact water.
In ruling that a surface water connection to a tributary of a navigable water was
21
In SWANCC dictum, the Court stated: “In order to rule for the [Corps of Engineers], we
would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent
to open water. But we conclude that the text of the statute will not allow this.” 531 U.S.
at 168 (emphasis in original).
22
SWANCC, 531 U.S. at 167.
CRS-5
water was enough, the circuit aligned itself with the large majority of appellate courts
to rule on
this issue since SWANCC.
In its petition for certiorari to the Supreme Court, the Rapanoses askasked whether the
the CWA’s reach extends to nonnavigable wetlands “that do not even abut a navigable
navigable water.” If a hydrological connection, “no matter how tenuous or remote,”
is all that
is required, the Rapanos’ petition also asksasked whether such CWA
jurisdiction would
exceed Congress’ power under the Commerce Clause.
Carabell v. U.S. Army Corps of Engineers:
No Hydrological Connection wetlands adjacent to a tributary
(man-made ditch) that ultimately flows into traditional navigable waters — but
wetlands separated from the tributary by a manmade berm.
Like the Rapanoses, the Carabells owned a wetland tract in Michigan. They
wished to develop it for a condominium project. Unlike the Rapanoses, the Carabells
pursued the required wetlands permitting process — state, then federal. The Carabell
case arose aswas their challenge to the Corps’ denial of the section 404 permit, and
raised,
among other things, the issue of whether the Corps had jurisdiction over the
wetland.
The Sixth Circuit held that “adjacent wetlands” jurisdiction existed under the
Corps regulations, even though the wetland was separated from a tributary of “waters
of the United States” by a four-foot-wide manmade berm that blocked immediate
drainage of surface water from the parcel to the tributary.2325 The existence of the
berm meant, critically, that unlike the wetlands in Rapanos, the wetlands here lacked
any hydrological connection to navigable waters at all. Parenthetically, the fact that
the “tributary” was merely a man-made ditch (which emptied into a creek, which
flowed into a navigable lake) did not appear to be an issue in the case, as it was in
Rapanos. Finally, the court endorsed the view of the majority of courts addressing
the question that SWANCC spoke only to the Corps’ “isolated waters” jurisdiction;
it did not narrow the agency’s “adjacent wetlands” authority involved here and
broadly construed in Riverside Bayview.
In its petition for certiorari, the Carabells askasked whether section 404 extends to
“wetlands that are hydrologically isolated from any of the ‘waters of the United
States’.” If so, the petition asksasked the same follow-up question as in Rapanos: Would
such CWA jurisdiction exceed Congress’ power under the Commerce Clause?
2325
Corps of Engineers regulations define the word “adjacent” in “adjacent wetlands” to mean
“bordering, contiguous, or neighboring. Wetlands separated from other waters of the
United States by man-made dikes or barriers ... are ‘adjacent wetlands.’” 33 C.F.R. §
328.3(c).
CRS-6
Legal Analysis
The jurisdictional questions raised by Rapanos and Carabell present the
Supreme Court with a “perfect storm” of hot-button issues. First, there is the
federalism matter: where do CWA section 404 and the Constitution’s Commerce
Clause draw the line between federal and state authority over wetlands? The
Supreme Court has been newly active in the Commerce Clause area since 1995 —
part of a willingness on the part of certain justices, particularly during this period, to
limit federal power under several constitutional provisions.24 The Court’s Commerce
Clause views are of linch-pin importance to several federal environmental laws,
among others, resting as those laws do on Congress’ power under the Clause. What
makes the section 404 program particularly vulnerable to any future judicial
narrowing of the commerce power is the program’s frequent application to wetlands
where the constitutionally required nexus to interstate commerce is not obvious. The
same holds true of applications of the Endangered Species Act to protect species,
subspecies, and vertebrate populations that do not cross state lines.25 Challenges to
the more intrastate applications of both statutes, and likely others, may proliferate
should the Court pare down the commerce power in Rapanos or Carabell.
Second, there are property rights concerns. Some 75% of jurisdictional
wetlands in the lower 48 are on private property, with the result that protests from
property owners denied section 404 permits (or subjected to unacceptable conditions
on same) are often heard — sometimes in the courts through Fifth Amendment
24
Two justices closely associated with the Court’s recent reexaminations of the boundary
between federal and state power under the Constitution, Chief Justice Rehnquist and Justice
O’Connor, have now left the Court. The federal-state views of their replacements, Chief
Justice John Roberts and Justice Samuel Alito respectively, were a recurring theme during
their confirmation hearings. The limited Commerce Clause writings of these new justices
suggest views similar to those of their predecessors. Then-Judge Roberts was one of two
dissenters from the denial of rehearing en banc in Rancho Viejo, LLC v. Norton, 334 F.3d
1158, 1160 (D.C. Cir. 2003), an Endangered Species Act decision rejecting a Commerce
Clause challenge to the act. Perhaps coincidentally, the Supreme Court’s decision to hear
Rapanos and Carabell, following several denials of certiorari in cases raising similar issues,
was made in the first conference of the justices presided over by Chief Justice Roberts.
Then-Judge Alito dissented from the Third Circuit’s decision upholding as within the
Commerce Power a federal law banning the possession and transfer of machine guns.
United States v. Rybar, 103 F.3d 273 (3d Cir. 1996). Previously, several federal circuits had
determined, under various rationales, that the machine gun ban was not a violation of the
Commerce Clause.
25
16 U.S.C. §§ 1531-1544. Though all Commerce Clause challenges to applications of the
Endangered Species Act have failed thus far, several vigorous dissents have been registered.
Both Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001), and
National Ass’n of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied,
524 U.S. 937 (1998), were decided on 2-1 votes. In two other Endangered Species Act
cases, circuit court decisions to deny rehearing en banc after rejecting a Commerce Clause
challenge caused more than one judge of the court to object: GDF Realty Investments, Ltd.
v. Norton, 362 F.3d 286 (5th Cir. 2004) (six judges in dissent), cert. denied, 125 S. Ct. 2898
(2005), and Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003) (two judges in
dissent), cert. denied, 540 U.S. 1218 (2004).
CRS-7
takings suits. The public visibility of such grievances is often heightened by property
rights organizations and their allies in Congress. And third, there is the legal tension
stemming from the hybrid land/water nature of wetlands. In American law, the rights
of landowners generally are multifold and relatively unqualified; rights in water, by
contrast, tend to be limited and highly qualified. Wetlands law, standing at the
intersection of these two bodies of law, reflects the tension between them.
Aside from these broad jurisprudential concerns, Rapanos and Carabell have
pervasive significance within the CWA itself. The CWA jurisdictional phrase
“waters of the United States” that the Court likely will construe in those cases
governs not only the section 404 wetlands permitting program, but also multiple
other provisions and requirements of that law (see discussion below under Policy
Implications). In addition, the Oil Pollution Act of 1990 uses “waters of the United
States” to define its scope.26
As to how the Supreme Court decision might come out, one can only say that
the petitioners’ argument in Rapanos seems a harder sell than that in Carabell. The
Rapanos’ ask the Court to deny CWA and constitutional coverage of waters that are,
albeit tenuously, connected to navigable-in-fact waters. In light of the broad
purposes of the CWA and the broad reach of the Commerce Clause, this argument
may prove a tough one.27 The Carabells, however, ask only that waters not connected
at all to navigable waters be ruled off limits.
The two cases are to be argued on February 21, 2006, with a decision likely by
June. Reflecting their importance, numerous amicus briefs have been filed on both
sides, including a few by organizations that claim never to have filed amicus briefs
before. Some current and former Members of Congress also are among the amici.28
Policy Implications
The policy question associated with these cases — what should be the outer
limit of CWA regulatory jurisdiction and what are the consequences of restricting the
geographic scope of regulatory protection under the act — has challenged regulators,
landowners and developers, and policymakers since passage of the act in 1972.
The act prohibits the discharge of dredged or fill material into navigable waters
without a permit, and it also prohibits discharges of pollutants from any point source
to navigable waters without a permit. Disputes have centered on whether wetlands
26
33 U.S.C. § 2701(21).
27
CWA and constitutional coverage of remotely connected waters were upheld in United
States v. Deaton, 332 F.3d 698 (4th Cir. 2003), cert. denied, 541 U.S. 972 (2004). Joining
the court’s unanimous opinion were two generally conservative judges, Judge Wilkinson and
Judge Luttig.
28
Rep. John Duncan (R-Tenn.) filed on the side of petitioners Rapanos and Carabell. Reps.
John Dingell (D-Mich.), John Conyers (D-Mich.), and Charles Rangel (D-N.Y.), plus
several former Members of Congress, filed on the side of respondent United States.
CRS-8
and other waters are navigable waters. The answer to this question is important,
because it determines the extent of federal CWA regulatory authority not only for the
section 404 program, but also for purposes of implementing other CWA programs.
Critics of the section 404 regulatory program, such as land developers and agriculture
interests, argue that the Corps’ wetlands program has gradually and illegally
expanded its asserted jurisdiction since 1972. They want the Corps and EPA to give
up jurisdiction over most non-navigable tributaries and allow other federal and state
The Supreme Court Decision
For many who had waited so long to have “waters of the United States”
clarified, the Rapanos decision (addressing the Sixth Circuit decisions in both
Rapanos and Carabell) was a disappointment. In three major opinions, the court
split 4-1-4 as to whether the Corps’ assertions of 404 jurisdiction in the two cases
before it comported with the CWA — that is, involved “waters of the United States.”
Justice Scalia wrote a four-justice plurality opinion, ruling that the Corps had
overreached and thus the Sixth Circuit decisions must be vacated and remanded for
further proceedings applying the plurality’s rule. Justice Kennedy, in a lone
concurrence, also disagreed with the Corps’ interpretation of the CWA, but would
have applied a different approach than the plurality. He supplied the fifth vote
supporting the vacation and remand, making that the judgment of the Court. (Five
votes is a majority on the Supreme Court.) Finally, Justice Stevens wrote a fourjustice dissent upholding the Corps’ reading of its jurisdiction. Accordingly, he
would have affirmed the decisions below.26
The problem is that no single rationale in these three opinions commands the
support of a majority of the justices. Thus, lower courts addressing challenges to
Corps 404 jurisdiction in the future will have to struggle with what rule of decision
to extract from Rapanos, and may take their cue from either the Scalia plurality
decision or the Kennedy concurrence (more on this later). That being so, it behooves
us to examine both these two opinions, with a briefer mention of the dissenters’
views.
Justice Scalia’s plurality opinion asserts what is probably the narrowest view of
404 jurisdiction in the three major opinions, at least in most circumstances. His
opening paragraphs set the tone by describing the substantial costs of applying for
404 permits, and the “immense expansion of federal regulation of land use that has
occurred under the Clean Water Act.”27 This critical tone continues with the
opinion’s description of how the lower courts, “[e]ven after SWANCC,” have
continued to uphold the “sweeping” assertions of jurisdiction by the Corps over
tributaries and adjacent wetlands.28
Justice Scalia continued by construing “waters” in “waters of the United States”
to mean only relatively permanent, standing or flowing bodies of water, such as
streams, rivers, lakes, and other bodies of water “forming geographic features.”29
This definition leads him to exclude “channels containing merely intermittent or
26
In addition to these three major opinions, Chief Justice Roberts wrote a brief opinion
concurring with the plurality, and Justice Breyer wrote a brief opinion concurring with the
dissenters.
27
126 S. Ct. at 2215.
28
Id. at 2217.
29
Id. at 2221.
CRS-7
ephemeral flow.”30 Wetlands, our topic here, are included as “waters of the United
States” — that is, are “adjacent” in the Corps’ language — only when they have a
“continuous surface connection” to bodies that are “waters of the United States” in
their own right. By contrast, wetlands with only an intermittent, physically remote
hydrological connection to “waters of the United States” are not covered by section
404, according to the Scalia opinion.
Importantly, the plurality sought to calm concerns that a narrow reading of
section 404 would eviscerate other sections of the CWA, particularly the point-source
permitting program under section 402 that is the heart of the act. That section, the
plurality explained, does not require that the point source discharge directly into a
jurisdictional water. It is enough that the discharged pollutant is likely to ultimately
be carried downstream to such a jurisdictional water. Thus, unlike with section 404,
discharges into non-covered waters could still be regulated.
In contrast to the absolute rules proposed by the plurality, Justice Kennedy’s
concurring opinion proposed a case-by-case test. He picks up on the “significant
nexus” test used by the Sixth Circuit and many other courts — but while the lower
courts defined significant nexus as having a hydrological connection with traditional
navigable waters,31 Justice Kennedy used an ambiguous ecological test.32 A wetland,
he declared, has the requisite significant nexus if, alone or in combination with
similarly situated lands in the region, it significantly affects the chemical, physical,
and biological integrity of traditional navigable waters.33 These ecological functions
include flood retention, pollutant trapping, and filtration. Under Kennedy’s opinion,
the waters that perform these functions may be intermittent or ephemeral, and they
need not have a surface hydrological connection to other waters. When, in contrast,
their effects on water quality are speculative or insubstantial, the wetland is beyond
section 404’s reach.34
This formulation, Justice Kennedy explained, allows that when the Corps seeks
to regulate wetlands adjacent to navigable-in-fact waters, adjacency is enough for
jurisdiction. In contrast, for wetlands sought to be regulated based on adjacency to
non-navigable tributaries, a significant nexus must be shown on a case-by-case basis.
Importantly, however, the Justice did allow that the Corps might adopt regulations
at some point declaring certain categories of wetlands to have a significant nexus per
se, obviating the case-by-case approach for those wetlands.
30
Id. at 2222.
31
Hydrological connection is the test that the Corps has used to demonstrate significant
nexus.
32
Soon after Rapanos was decided, a federal district court commented that Justice
Kennedy’s opinion “advanced an ambiguous test — whether a ‘significant nexus’ exists to
waters that are/were/might be navigable. .... This test leaves no guidance on how to
implement its vague, subjective centerpiece.” United States v. Chevron Pipe Line Co., 437
F. Supp. 2d 605 (N.D. Tex,. 2006).
33
126 S. Ct. at 2248.
34
Id.
CRS-8
Each of the foregoing views, the plurality’s and Justice Kennedy’s, rejects the
hitherto prevailing view that any hydrological connection to a traditionally navigable
water, no matter how distant, is sufficient for coverage. This “any hydrological
connection” test had been a key element of the United States’ assertions of “adjacent
wetlands” jurisdiction.
Finally, the four dissenters found the Corps’ assertion of jurisdiction reasonable
in both cases. The Court’s earlier decision in Riverside Bayview, the dissenters
argue, was not confined to wetlands having continuous surface flow with traditional
navigable waters or their tributaries. Rather it had endorsed jurisdiction over nonisolated wetlands generally, without case-by-case analysis. The plurality’s concerns
about the costs of applying for a permit, they continued, are more properly addressed
to Congress, not to a court.
Legal Analysis
The jurisdictional questions raised by Rapanos and Carabell presented the
Supreme Court with a “perfect storm” of hot-button issues. First, there is the
federalism matter: where do CWA section 404 and the Constitution’s Commerce
Clause draw the line between federal and state authority over wetlands? Second,
there are property rights concerns. Some 75% of jurisdictional wetlands in the lower
48 states are on private property, with the result that protests from property owners
denied section 404 permits (or subjected to unacceptable conditions on same) are
often heard — sometimes in the courts through Fifth Amendment takings suits.
Third, Rapanos and Carabell have pervasive significance within the CWA itself,
since “waters of the United States” governs not only the section 404 wetlands
permitting program, but also multiple other provisions and requirements of that law
(see discussion below under Policy Implications). In addition, the Corps’ broad
reading of its jurisdiction created novel semantics (such as viewing dry arroyos as
“waters,” and manmade ditches as “tributaries”) that justices inclined to more literal
readings of statutory language would have a hard time accepting.
The drama was further heightened by the fact that for two of the justices
deciding the case, Chief Justice Roberts and Justice Alito, it was their first term on
the Court. Their environmental views were not well known on the basis of their prior
appellate tenure.
It was not surprising in light of the above themes that the justices split as they
did: the four more “conservative” justices rejecting the Corps’ expansive view of its
adjacent wetland jurisdiction, the four “liberal/moderates” upholding it, and Justice
Kennedy coming down in between (as he often does) with a case-by-case test, at least
until the Corps adopts new rules. The question, as noted earlier, is what rule of
decision the lower courts will discern in Rapanos, with its absence of a majority
rationale, for use in future cases. In practice, courts often look for common
approaches supported by a majority of the justices, looking both to the views of
plurality justices (supporting the judgment of the court in the case) and those of the
dissenters (who do not support the judgment). Because Justice Kennedy’s
concurrence is on the whole closer to the dissent than to the plurality, and will likely
CRS-9
often include wetlands covered by the plurality, his views may prevail.35 That is, any
wetland that Justice Kennedy would view as covered would also be one that the
dissenters would see as covered — together, a majority of the Court.
Thus far, the few lower-court decisions to apply Rapanos have been
inconsistent, as was widely predicted based on its fractured nature. One decision
took its cue from the Scalia plurality view of 404 jurisdiction over adjacent wetlands,
though principally relying on circuit precedent.36 A second court looked solely to the
Kennedy view.37 Still another took the view, suggested by the dissenters in Rapanos,
that a wetland satisfying either the plurality or the Kennedy concurrence was
covered.38 Support for this view, of using either the plurality or Kennedy test in a
particular fact situation, was endorsed by a Department of Justice official in
testimony at a Senate hearing on August 1.39
In the wake of Rapanos, several factors are putting pressure on the Corps and
EPA to do a rulemaking on the scope of “adjacent wetlands” permitting jurisdiction
under the CWA (assuming Congress does not act). One is the fact that no fewer than
three of the opinions in Rapanos urged the agencies to do so.40 A second factor is the
labor-intensive nature (and vagueness) of the Kennedy case-by-case approach,
requiring empirical study of each wetland near a non-navigable tributary. And the
third is the likelihood, as noted above, that the lower courts will diverge as to the rule
to be applied after Rapanos. This is not to minimize the considerable difficulty of
coming up with a rule that meets the Kennedy “significant nexus” test (if that is the
one adopted) with its complicated mix of ecological factors. One can be confident
that anything the Corps and EPA promulgate will find its way into the courts. At this
early date, the two agencies are proceeding to develop interim guidance as to how
they will construe Rapanos, but they have not stated their intentions as to whether
they will issue a rule amending their existing jurisdictional rule.
All of the Rapanos opinions that mention SWANCC seem to accept, without
discussion, that SWANCC eliminates jurisdictional coverage of all isolated, intrastate,
nonnavigable waters — not just those isolated, intrastate, nonnavigable waters where
35
Justice Kennedy seems to reject every major proposition of the Scalia plurality. For
example, Scalia insists that the tributary contain water relatively permanently; Kennedy (and
the dissenters) does not. Scalia insists on a continuous, non-intermittent surface connection
with the tributary; Kennedy (and the dissenters) does not.
36
United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605 (N.D. Tex. 2006). This
decision actually involved the amendments to the CWA made by the Oil Pollution Act,
which uses the same definition of “waters of the United States” as CWA section 404.
37
Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006).
38
United States v. Evans, 2006 Westlaw 2221629, *19 (M.D. Fla. Aug. 2, 2006).
39
Cruden, John C., Deputy Assistant Attorney General, Environment and Natural Resources
Division, U.S.. Department of Justice, “Statement Concerning Recent Supreme Court
Decisions Dealing with the Clean Water Act,” before the Subcommittee on Fisheries,
Wildlife and Water, U.S. Senate Committee on Environment and Public Works, August 1,
2006, p. 16.
40
See opinions of Justice Kennedy, Justice Breyer, and Chief Justice Roberts.
CRS-10
the sole basis for asserting jurisdiction was the Migratory Bird Rule. Most lower
court decisions to broach this issue had adopted the latter narrower reading of
SWANCC. Thus, although only adjacent wetlands were directly involved in Rapanos,
there may be impacts on the Corps’ authority over isolated, intrastate, nonnavigable
waters also.
Finally, although both petitions for certiorari had raised the Commerce Clause
issue, the decision in Rapanos, as expected, was on purely statutory grounds. The
plurality, however, did assert that the Corps view of its adjacent wetlands jurisdiction
“stretches the outer limits of Congress’ commerce power,”41 using this as one of
several reasons for adopting a narrow reading of that jurisdiction.
Policy Implications
As with the legal questions, the policy questions associated with these cases —
what should be the outer limit of CWA regulatory jurisdiction and what are the
consequences of restricting that jurisdiction — also have challenged regulators,
landowners and developers, and policymakers since passage of the act in 1972.
The act prohibits the discharge of dredged or fill material into navigable waters
without a permit, and it also prohibits discharges of pollutants from any point source
to navigable waters without a permit. Disputes have centered on whether wetlands
and other waters are “navigable waters,” a legal term of art. The answer to this
question is important, because it may determine the extent of federal CWA regulatory
authority not only for the section 404 program, but also for purposes of implementing
other CWA programs. Critics of the section 404 regulatory program, such as land
developers and agriculture interests, argue that the Corps’ wetlands program has
gradually and illegally expanded its asserted jurisdiction since 1972. They want the
Corps and EPA to give up jurisdiction over most non-navigable tributaries and allow
other federal and state programs to fill whatever gap is created.
Waters that are jurisdictional are subject to the multiple regulatory requirements
of the CWA: standards, discharge limitations, permits, and enforcement. Nonjurisdictional waters, in contrast, do not have the federal legal protection of those
requirements. The act has one definition of “navigable waters” that applies to the
entire law. The definition applies to: federal prohibition on discharges of pollutants
(section 301), requirements to obtain a permit prior to discharge (sections 402 and
404), water quality standards and measures to attain them (section 303), oil spill
liability and oil spill prevention and control measures (section 311), certification that
federally permitted activities comply with state water quality standards (section 401),
and enforcement (section 309). As noted above, it impacts the Oil Pollution Act and
other environmental laws as well. For example, the reach of the Endangered Species
Act (ESA) is affected, because that act’s requirement for consultation by federal
agencies over impacts on threatened or endangered species is triggered through the
41
126 S. Ct. at 2224.
CRS-11
issuance of federal permits.2942 Thus, by removing the need for a CWA permit, a nonjurisdictional determination would eliminate ESA consultation, as well.
SWANCC challenged and As
discussed above, the Scalia opinion in Rapanos concluded that a narrow
interpretation of the Corps’ 404 jurisdiction would not impact these other provisions,
but many observers contend that the question is not fully resolved.
SWANCC found invalid the assertion of CWA jurisdiction over
isolated, non-navigablenonnavigable intrastate waters solely on the basis of their use (or potential
use) as habitat
by migratory birds. Most of the post-SWANCC cases have, instead,
addressed addressed
tributaries and adjacent wetlands, asking which of these have the
“significant nexus”
to navigable waters that the Supreme Court has saidSWANCC was interpreted to say is necessary
to establish federal
jurisdiction.
Wetlands are an important part of the total aquatic ecosystem, with many
recognized functions and values, including water storage (mitigating the effects of
floods and droughts), water purification and filtering, recreation, habitat for plants
and animals, food production, and open space and aesthetic values. Functional
values, both ecological and economic, at each wetland depend on its location, size,
and relationship to adjacent land and water areas. To the layman, many of these
values are more obvious for wetlands adjacent to large rivers and streams than they
are for wetlands and small streams that are isolated in the landscape from other
waters. Many of the functions and values of wetlands have been recognized only
recently. Historically, many federal programs encouraged wetlands to be drained or
altered because they were seen as having little value. Even today, while more federal
laws either encourage wetland protection or regulate their modification, pressure
exists to modify, drain, or develop wetlands for uses that some see as more
economically beneficial.
29
16 U.S.C. § 1536.
CRS-9
While regulators and the regulated community debate the legal dimensions of
federal jurisdiction, scientists contend that there are no discrete, scientifically
supportable boundaries or criteria along the continuum of wetlands to separate them
into meaningful ecological or hydrological compartments. Numerous scientific
studies define and describe the importance of the functions and values of wetlands,
in support of their significant nexus to navigable waters.3043 In all but some very
narrow instances, scientists say, terms such as “isolated waters” and “adjacent
wetlands” are artificial legal or regulatory constructs, not valid scientific
classifications. From this perspective, even waters that lack a direct surface
connection to navigable waters or that only flow intermittently are connected to the
larger aquatic ecosystem via subsurface or overflow hydrologic connections.
Wetland scientists believe that all such waters are critical for protecting the integrity
of waters, habitat, and wildlife downstream.
In SWANCC, the Supreme Court did not draw a bright line for regulatory
purposes of
determining the limits of federal jurisdiction (andmany wetland scientists do
not believe
that a bright line is possible, in any case). While the ruling reduced
federal federal
42
43
16 U.S.C. § 1536.
Leibowitz, Scott G., “Isolated Wetlands and Their Functions: An Ecological
Perspective,” Wetlands, vol. 23, no. 3, September 2003, pp. 517-531.
CRS-12
jurisdiction over some previously regulated wetlands, even nearly five years
later, it later it
remains difficult to determine the precise effect of that decision. Many
affected affected
interests (states and the regulated community) contend that guidance from
the Corps
and EPA has not adequately defined the scope of regulated areas and
wetlands wetlands
affected by SWANCC and subsequent court rulings.31 In addition, the
44 The agencies’ current
guidance, issued in 2003, has been challenged in Congress: in May, the House
approved an amendment to EPA’s FY2007 appropriations bill (H.R. 5386) that
would bar EPA from spending funds to implement or enforce the guidance. In
addition, the Government Accountability Office found that uncertainties about legal
interpretations are amplified by
variability in jurisdictional determinations made by
the 38 Corps District offices that
administer the CWA section 404 permit program.32 45
The Rapanoses and the Carabells
hope had hoped that the Supreme Court willwould clarify the
jurisdiction issue and that the Court will
would further narrow the program’s geographic reach
reach. Other interest groups disagreed with the petitioners’ views on the issues, but
also had hoped for clarity. Most now say that the 4-1-4 ruling, in which the three
main opinions did not agree on what constitutes “waters of the United States,” did
not bring clarity and will require much study to discern its meaning in legal and
policy terms.
Estimates of the types of wetlands and amounts of affected acreage depend on
interpretation of SWANCC and subsequent court rulingsacreage affected by
SWANCC, subsequent lower court rulings, and Rapanos depend on interpretation of
the cases and on assumptions about
defining key terms such as “adjacent,”
“tributary,” and “significant nexus.” Because
in its regulations before SWANCC the
Corps had broadly defined “waters of the
United States,” including those
encompassed by the Migratory Bird Rule, nearly all
U.S. wetlands and waters were
subject to CWA jurisdiction, since practically all are
used to a greater or lesser extent
by migratory birds.3346 Depending on how key terms
are now defined, reduced federal
jurisdiction could affect very small or very large
30
Leibowitz, Scott G. “Isolated Wetlands and Their Functions: An Ecological Perspective.”
Wetlands. Vol. 23, no. 3, September 2003. pp. 517-531.
31
See, for example: U.S. Congress. House of Representatives. Committee on
Transportation and Infrastructure. Subcommittee on Water Resources and Environment.
“Inconsistent Regulation of Wetlands and Other Waters.” Hearing, 108th Congress, 2d
Session, March 30, 2004. (H.Hrg. 108-58) 200 p.
32
U.S. Government Accountability Office. categories of waters and wetlands.
Reflecting the uncertainties about how broadly or narrowly SWANCC would be
interpreted, one estimate made after that decision found that the possible changes in
jurisdiction could range from 20% to 80% of the Nation’s total estimated 100 million
acres of wetlands.47 Following the Rapanos decision, concern has been expressed
particularly about that ruling’s impacts in arid and semi-arid western states to exclude
intermittent or ephemeral streams and adjacent wetlands and riparian areas from
CWA jurisdiction.
44
See, for example: U.S. Congress, House of Representatives, Committee on Transportation
and Infrastructure, Subcommittee on Water Resources and Environment, “Inconsistent
Regulation of Wetlands and Other Waters,” Hearing, 108th Congress, 2d Session, March 30,
2004, (H.Hrg. 108-58), 200 p.
45
U.S. Government Accountability Office, “Corps of Engineers Needs to Evaluate Its
District Office Practices in Determining Jurisdiction.,” GAO-04-297., February 2004.
3346
Kusler, Jon., The Association of State Wetland Managers., “‘Waters of the U.S.’ After
SWANCC.,” August 12, 2005 (draft), p. 6.
CRS-10
categories of waters and wetlands. The possible changes in jurisdiction could range
from 20% to 80% of the Nation’s total estimated 100 million acres of wetlands.34
!
!
!
Under a narrow interpretation of SWANCC allowing the Corps to
regulate traditionally navigable waters, tributaries, adjacent
wetlands, and other wetlands with a significant nexus (even if they
are not tributary or adjacent), 80-90% of wetlands would be
regulated under federal law. Documentation of such nexus would
likely need to be made on a case-by-case basis.
If the Corps regulates traditionally navigable waters and their
adjacent wetlands, plus tributaries and wetlands adjacent to all
tributaries, 40-60% or more of all wetlands are likely to be regulated.
Much depends on how the Corps, EPA, and the courts define
“tributary” and “adjacent” — key terms at issue in the Rapanos and
Carabell cases. For example, if “tributary” were narrowly construed
to include only perennial streams, some prairie potholes, vernal
pools, forested wetlands, wet meadows, tundra, and bogs would be
unregulated.
Under a broad reading of SWANCC, limiting the Corps to only
regulating traditionally navigable waters and adjacent wetlands,
perhaps 20% of the Nation’s wetlands would be subject to federal
regulation. Under this scenario, CWA-regulated wetlands would
primarily include fringe wetlands on large rivers, streams, and lakes,
and coastal and estuarine fringing wetlands.
47
Kusler, Jon, The Association of State Wetland Managers, “The SWANCC Decision: State
Regulation of Wetlands to Fill the Gap,” March 2004, pp. 6-8. Hereafter, Kusler.
CRS-13
A reduction in CWA jurisdiction affects implementation of the 404 and possibly
other CWA programs. Earlier this year, EPA estimated conservatively that the extent
of non-navigable tributaries and adjacent wetlands that could be affected by the
narrow reading of the Clean Water Act that was advocated by the Rapanos and
Carabell petitioners was up to 59% of the total length of streams in the United States,
excluding Alaska. EPA also estimated that 34% of industrial and municipal
dischargers that are subject to CWA section 402 permits are located on these stream
segments and that public drinking water systems which use intakes on these segments
provide drinking water to over 110 million people.48 A review by EPA Region III in
2003 concluded that restricting federal jurisdiction to areas that appear to lack a
permanent surface water connection to “navigable waters” would remove about 12%
of the region’s wetlands from federal protection.49
As noted, the uncertainties resulting from the Rapanos decision have led to
widespread anticipation that the Corps and EPA will take administrative action to
clarify how they interpret the ruling and its impact on waters that are protected by the
Clean Water Act. Corps and EPA officials testified before a Senate subcommittee
on August 1 that the agencies are working on substantive interpretive guidance that
will clarify CWA jurisdiction in light of the decision, but there is no timeframe for
this guidance.50 A few days after the decision was issued, the agencies provided
informal guidance recommending that enforcement and field staff temporarily delay
making CWA jurisdictional determinations or refer new regulatory enforcement
actions for areas beyond the limits of traditional navigable waters. Except for
projects involving traditional navigable waters, permit decisions will either have to
be deferred until additional guidance is issued, or permits will be issued based on the
pre-Rapanos jurisdictional limits and may be revisited upon request after the final
guidance is issued. While most observers acknowledge that guidance will be useful,
many argue that the Corps must initiate a rulemaking to revise its regulations —
especially since three justices in some fashion suggested one. Thus far, the
government has not committed to issuing new rules. New regulations may clarify
many current questions but are unlikely to please all of the competing interests, as
one environmental advocate has observed.
However, a rulemaking would only benefit wetlands if it did not reduce the
jurisdiction offered by current regulations and if the Administration remained
faithful to sound science. If politics were to trump science in the rulemaking
process, the likelihood of such a protective rule would not be promising. Also,
48
Grumbles, Benjamin H., Assistant Administrator for Water, EPA, letter to Ms. Jeanne
Christie, Association of State Wetland Managers, January 9, 2005 (sic), p. 3. Because there
is no national database of non-navigable tributaries, EPA analyzed surrogate data on the
linear extent of intermittent/ephemeral streams and stream segments that lie at the head of
tributary systems and have no other streams flowing into them.
49
Blankenship, Karl, “Supreme Court affirms wetlands protections on narrow vote,” Bay
Journal, vol. 16, no. 5, July-August 2006, p. 9.
50
Grumbles, Benjamin H., Assistant Administrator for Water, EPA, and John Paul Woodley,
Assistant Secretary of the Army for Civil Works, Department of the Army, Statement before
the Subcommittee on Fisheries, Wildlife, and Water of the U.S. Senate Committee on
Environment and Public Works, August 1, 2006.
CRS-14
rules are subject to legal challenge and can be tied up in court for years before
they are implemented.51
Filling the Gaps
Whatever gaps in wetland regulation result from reduced federal jurisdiction
arguably could be filled, at least in part, by other federal or state and local programs
and actions. For example, some assert that wetland restoration and creation
programs, such as the Wetlands Reserve Program and the Coastal Wetlands
Restoration Program, or private conservation efforts can provide protection, even if
the wetland is no longer jurisdictional.3552 However, others respond that such
programs are likely to be incomplete in filling gaps, since they apply primarily to
rural areas and do not apply to the one-third of the Nation’s lands in federal
ownership. Moreover, they were never intended to be a seamless group that would
fill all possible gaps.
SWANCC and subsequent legal decisions, the subsequent lower court decisions, and Rapanos also highlight the
role of states in
protecting waters not addressed by federal law. From the states’
perspective, the
federal section 404 program provides the basis for a consistent
national approach to
wetlands protection. But if a larger portion of wetlands are no
longer jurisdictional,
they say, it can be argued that the section 404 program no longer provides a baseline
34
Kusler, Jon. The Association of State Wetland Managers. “The SWANCC Decision:
State Regulation of Wetlands to Fill the Gap.” March 2004. pp. 6-8. Hereafter, Kusler.
35
U.S. Environmental Protection Agency. “Advance Notice of Proposed Rulemaking on the
Clean Water Act Regulatory Definition of ‘Waters of the United States.’” 68 Federal
Register 1994-95. January 15, 2003.
CRS-11
longer provides a baseline for consistent, minimum standards to regulate wetlands. SWANCC and other court
rulings do not prevent
None of these court rulings prevents states from protecting non-jurisdictional waters through
through legislative or administrative action, but few states have done so. Prior to
SWANCC,
15 states had programs that regulate isolated freshwater wetlands to some
degree, but
state officials acknowledge that these programs vary substantially from
some that are
comprehensive in scope to others that are limited by wetland size or
have exemptions
for agriculture and other activities.3653 Since 2001, a few states have
passed new
legislation or updated water quality regulations; the issue remains under
consideration in several states, where competing proposals that are viewed by some
as strengthening and by others as weakening wetland protection are being debated.3754
Although some states have authorities to regulate waters of their state, their
ability to regulate effectively may be compromised, because state rules often are tied
to federal definitions. The gap produced by reduced federal jurisdiction is most
evident in the 32 states that have no independent wetlands programs and that
typically have relied on CWA section 401 water quality certification procedures to
protect wetlands. Pursuant to section 401, applicants for a federal permit must obtain
a state certification that the project will comply with state water quality standards.
51
Murphy, James, “Rapanos v. United States: Wading Through Murky Waters,” National
Wetlands Newsletter, vol. 28, no. 5, September-October 2006, p. 19.
52
U.S. Environmental Protection Agency, “Advance Notice of Proposed Rulemaking on the
Clean Water Act Regulatory Definition of ‘Waters of the United States,’” 68 Federal
Register 1994-95, January 15, 2003.
53
54
Kusler, p. 15.
Goldman-Carter, Jan, “Isolated Wetland Legislation: Running the Rapids at the State
Capitol,” National Wetlands Newsletter, May-June 2005, pp. 27-29.
CRS-15
Consequently, by conditioning certification, states have the ability to affect the
federal permit and to exercise some regulatory control over wetlands without the
expense of establishing independent state programs. However, as described
previously, diminished CWA jurisdiction which affects the section 404 program also
limits the reach of other CWA programs, including section 401.
Analysts familiar with the political and fiscal environments of states believe that
most states are either reluctant or unable “to step boldly into the breach in federal
wetlands protection....The Corps and the U.S. Environmental Protection Agency, not
to mention Congress, have little cause to rely on the notion that states will effectively
backstop federal protection for isolated wetlands.”3855 Many states are barred from
enacting laws or rules more stringent than federal rules, or are reluctant to take
action, due to budgetary and resource concerns, as well as apprehension that
regulation will be judged to involve “taking” of private property and require
compensation.
In Congress, legislation has been introduced that would address the CWA
jurisdictional issues discussed here. One proposal, H.R. 1356, the Clean Water
Authority Restoration Act of 2005, would provide a broad statutory definition of
“waters of the United States;” clarify that the CWA is intended to protect U.S. waters
from pollution, not just maintain their navigability; and include a set of findings to
assert constitutional authority over waters and wetlands. Other legislation to restrict
regulatory jurisdiction also has been introduced in the 109th Congress (H.R. 2658, the
Federal Wetlands Jurisdiction Act of 2005). It would narrow the statutory definition
36
Kusler, p. 15.
37
Goldman-Carter, Jan. “Isolated Wetland Legislation: Running the Rapids at the State
Capitol.” National Wetlands Newsletter. May-June 2005. pp. 27-29.
38
Odell, Turner. “On Soggy Ground — State Protection for Isolated Wetlands.” National
Wetlands Newsletter. September-October 2003. p. 10.
CRS-12
of “navigable waters” and define certain isolated wetlands and other areas as not
being subject to federal regulatory jurisdiction. Neither bill has received
congressional action.
Some argue that what is needed now — regardless of interpretive guidance or
rulemaking that the Corps may pursue — is legislative action to affirm Congress’
intention regarding CWA jurisdiction. Others contend that, although the Rapanos
decision did not resolve the issues, it also did not substantially affect Congress’
willingness or interest in acting on issues that have been pending for several years
without congressional action. Related to this perspective is the view that, because
the current questions are highly technical in nature, a simple fix may not address the
problem or may create others, such as impacting rights that the CWA reserves to
states.
Legislation has been introduced that would address the CWA jurisdictional
issues discussed here in different ways. One 109th Congress proposal (H.R. 1356/S.
912, the Clean Water Authority Restoration Act of 2005), would provide a broad
statutory definition of “waters of the United States;” clarify that the CWA is intended
to protect U.S. waters from pollution, not just maintain their navigability; and include
a set of findings to assert constitutional authority over waters and wetlands. Other
legislation intended to restrict regulatory jurisdiction also has been introduced in the
109th Congress (H.R. 2658, the Federal Wetlands Jurisdiction Act of 2005). It would
narrow the statutory definition of “navigable waters” and define certain isolated
wetlands that are not adjacent to navigable waters, or non-navigable tributaries and
other areas (such as waters connected to jurisdictional waters by ephemeral waters,
ditches or pipelines), as not being subject to federal regulatory jurisdiction. Neither
proposal has received congressional action.
55
Odell, Turner, “On Soggy Ground — State Protection for Isolated Wetlands,” National
Wetlands Newsletter, September-October 2003, p. 10.