Order Code RL33263
The Wetlands Coverage of the Clean Water Act
Is Revisited by the Supreme Court:
Rapanos v. United States
Updated January 3July 26, 2007
Robert Meltz
Legislative Attorney
American Law Division
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
The Wetlands Coverage of the Clean Water Act
Is Revisited by the Supreme Court:
Rapanos v. 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 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
havealone, 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 currentexisting 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 courts are
extracting different rules of decision from Rapanos for resolving future cases.
Corps/EPA interim guidance issued in June 2007 says that a wetland generally is
jurisdictional if it satisfies either the plurality or Kennedy tests. The ambiguity of the
Rapanos decision and questions about the recent guidance have increased pressure
on Congress to provide clarification. Legislation intended to do so has been
introduced in the 110th Congress (H.R. 2421 and S. 1870).
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 other CWA
programs; the CWA has one definition of “navigable waters” that applies to
the entire law. Critics of the regulatory program had 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. the
entire law.
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.
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Sixth Circuit Decisions in Rapanos and Carabell . . . . . . . . . . . . . . . . . . . . . 4
The Supreme Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legal Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The EPA/Corps Guidance on Rapanos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Policy Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Filling the Gaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1417
The Wetlands Coverage of the Clean Water
Act Is Revisited by the Supreme Court:
Rapanos 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
of Engineers and
the Environmental Protection Agency (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 vegetative assemblages because of the wetness of the soil. Some wetland
areas may be continuously inundated by water, while other areas may not be flooded
at all. In coastal areas, flooding may occur on a daily basis as tides rise and fall.
1
126 S. Ct. 2208 (2006).
2
33 U.S.C. §§ 1251-1387.
3
United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), cert. granted sub nom. Rapanos v.
United States, 74 U.S.L.W. 3228 (Oct. 11, 2005) (No. 04-1034).
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).
.
4
Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004).
5
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 has grappled with where to set the outer bound of
of federal authority over the nation’s waterways, particularlyoften 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.”6 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.”7
Notwithstanding the Court’s enlargement of “navigability,” the Congress
considering the legislation that became the CWA of 19728 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”9 — seemingly minimizing the constraint of navigability. The
conference report said that the new phrase was intended to be given “the broadest
possible constitutional interpretation.”10
Among the provisions in the 1972 clean water legislation was section 404,11
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.12 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,13 however, the Corps issued new
regulations that swept up a range of wetlands.14 This broadening ushered in a debate,
continuing today, as to which wetlands Congress meant to reach in the section 404
6
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.
7
William H. Rodgers, Jr., Handbook on Environmental Law 401 (1977) (footnotes omitted).
8
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.
9
CWA § 502(7), 33 U.S.C. § 1362(7).
10
Conference report S.Rept. 92-1236 at 144, reprinted in 1972 U.S. Code Cong. & Admin.
News 3776, 3822.
11
33 U.S.C. § 1344.
12
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.
13
NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
14
40 Fed. Reg. 31320 (July 25, 1975), amending 33 C.F.R. part 209.
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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.15 In 1985, in Riverside
Riverside Bayview Homes, Inc. v. United States,1516 the Court unanimously upheld as reasonable
reasonable the Corps’ extension of its section 404 jurisdiction to “adjacent wetlands”
— as one
component of its definition of “waters of the United States.”1617 Under the Corps
Corps regulations, adjacent wetlands are wetlands adjacent to navigable bodies of
water or
interstate waters, or their tributaries.1718 The Court reasoned that the water-quality
waterquality objectives of the CWA were broad and sensitive to the fact that water moves in
hydrologic cycles
in hydrologic cycles, meaning the continuous movement of water on, above, and
below the surface of the Earth. 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 decision
in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers Engineers
(SWANCC)1819 directly involved the “isolated waters” component of the
Corps’
definition of “waters of the United States,”1920 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 their
tributaries — but whose “use, degradation, or destruction [nonetheless] could
affect affect
interstate commerce.”2021 Illustrative examples include “intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, [or]
prairie potholes”2122 with an interstate commerce nexus, or connection. 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,
nonnavigable, intrastate waters on any basis — indeed, over wetlands not adjacent
15 Migratory Bird Rule.
15
See generally Rapanos v. United States, 126 S. Ct. 2208, 2216-2217 (2006).
16
474 U.S. 121 (1985).
1617
33 C.F.R. § 328.3(a)(7). An identical EPA definition is at 40 C.F.R. § 230.3(s)(7).
1718
See note 15, supra.
1819
531 U.S. 159 (2001).
1920
33 C.F.R. § 328.3(a)(3). An identical EPA definition is at 40 C.F.R. § 230.3(s)(3).
2021
See note 18, supra.
21
See note 18, supra (emphasis added).
CRS-4
to “open water.”2222
See note 18, supra (emphasis added).
CRS-4
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,
nonnavigable, intrastate waters on any basis — indeed, over wetlands not adjacent
to “open water.”23 This disparity between the Court’s holding and its rationale
occasioned considerable litigation in the lower courts, the majority of which 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 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, modified its section
404 regulations since SWANCC.2324
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.
The 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 permit. (In a separate federal criminal action, Mr. Rapanos was convicted in
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 court decisions lifted from SWANCC’s explanation of Riverside
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
22
23
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).
2324
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
CRS-5
section 404 court decisions lifted from SWANCC’s explanation of Riverside
Bayview25 — 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 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 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 navigablein-fact water. In ruling that a surface water connection to a tributary of a navigable
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 asked whether
the CWA’s reach extends to nonnavigable wetlands “that do not even abut a
navigable water.” If a hydrological connection, “no matter how tenuous or remote,”
is all that is required, the Rapanos’ petition also asked whether such CWA
jurisdiction would exceed Congress’ power under the Commerce Clause.
Carabell v. U.S. Army Corps of Engineers: 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 was 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.2526 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 asked whether section 404 extends to
“wetlands that are hydrologically isolated from any of the ‘waters of the United
States’.” If so, the petition asked the same follow-up question as in Rapanos: Would
such CWA jurisdiction exceed Congress’ power under the Commerce Clause?
25
25
26
SWANCC, 531 U.S. at 167.
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 United
States by man-made dikes or barriers ... are ‘adjacent wetlands.’” 33 C.F.R. §
328.3(c).
CRS-6 328.3(c).
CRS-6
In its petition for certiorari, the Carabells asked whether section 404 extends to
“wetlands that are hydrologically isolated from any of the ‘waters of the United
States’.” If so, the petition asked the same follow-up question as in Rapanos: Would
such CWA jurisdiction exceed Congress’ power under the Commerce Clause?
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.2627
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 brieferbrief mention of the dissenters’
viewsdissent.
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.”2728 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.2829
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
27
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.
2728
126 S. Ct. at 2215.
2829
Id. at 2217.
29
Id. at 2221.
CRS-7
ephemeral flow.”30
CRS-7
streams, rivers, lakes, and other bodies of water “forming geographic features.”30
This definition leads him to exclude “channels containing merely intermittent or
ephemeral flow.”31 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,3132 Justice Kennedy used an ambiguous ecological test.3233 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.3334 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.3435
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.
3030
Id. at 2221.
31
Id. at 2222.
3132
Hydrological connection is the test that the Corps has used to demonstrate significant
nexus.
3233
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).
3334
126 S. Ct. at 2248.
34
Id.
CRS-8
35
Id.
CRS-8
at some point declaring certain categories of wetlands to have a significant nexus per
se, obviating the case-by-case approach for those wetlands.
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
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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
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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
Thus far, lower courts applying Rapanos have drawn different tests from the
decision, as was predicted based on its fractured nature. Three federal circuits have
ruled so far — two holding that the Kennedy “significant nexus” test controls,36 the
other accepting Justice Stevens’s suggestion that a wetland satisfying either the
Kennedy or plurality tests is jurisdictional.37 District court decisions, at least the
reported ones, seem to all follow one or the other of these options — Kennedy test
alone or Kennedy-or-plurality test.38 There appears to be no reported decision
squarely holding that the plurality test alone governs.39 To a considerable extent, the
court decisions turn on how the courts read Supreme Court guidance on what rule of
law may be inferred from decisions of the Court in which no rationale commands the
support of five or more Justices. The United States has consistently taken the
Kennedy-or-plurality position in litigation, as it did in congressional testimony soon
after the Rapanos decision40 and in the Corps/EPA guidance memorandum on
interpreting Rapanos released in June 2007 (discussed below).
In the wake of Rapanos, several factors arguably put 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.4041 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, thatThe third
factor is the divergence of 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 to be applied after Rapanos.
One can be confident, however, that anything the Corps and EPA promulgate will
36
United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006), petition for cert.
filed, 75 U.S.L.W. 3556 (April 2, 2007) (No. 06-1331); Northern California River Watch
v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006), petition for cert. filed, 76 U.S.L.W.
3009 (June 28, 2007) (No. 07-9).
37
United States v. Johnson, 467 F.3d 56 (1st Cir. 2006).
38
See, e.g., United States v. Evans, 2006 Westlaw 2221629 (M.D. Fla. 2006) (Kennedy test
or plurality test); Environmental Protection Information Center v. Pacific Lumber Co., 469
F. Supp. 2d 803 (S.D. Cal. 2007) (bound by City of Healdsburg to apply Kennedy test only);
Simsbury-Avon Preservation Soc’y, LLC v. Metacon Gun Club, Inc., 472 F. Supp. 2d 219
(D. Conn. 2007) (Kennedy test or plurality test); United States v. Cundiff, 480 F. Supp. 940
(W.D. Ky. 2007) (Kennedy test or plurality test).
39
One decision took its cue from the Scalia plurality view, though principally relying on
circuit precedent. 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.
40
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.
4041
See opinions of Justice Kennedy, Justice Breyer, and Chief Justice Roberts.
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find its way into the courts. At this time, whether the agencies will go beyond the
interpretive guidance of June 2007 to an actual rewrite of regulations is unclear. The
agencies state in the guidance that they “intend to more broadly consider
jurisdictional issues ... through rulemaking or other appropriate policy process.”
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
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 hadin Rapanos raised the Commerce Clause
Clause issue, the decision in Rapanos, as expected, was on purely statutory grounds. The
The plurality, however, did assert that the Corps view of its adjacent wetlands jurisdiction
jurisdiction “stretches the outer limits of Congress’ commerce power,”4142 using this
as one of
several reasons for adopting a narrow reading of that jurisdiction. several reasons for adopting a narrow reading of that jurisdiction. This
plurality view is plainly relevant to congressional bills seeking to overturn SWANCC
and Rapanos by amending the CWA to explicitly assert jurisdiction over waters to
the fullest extent consistent with the Constitution.
The EPA/Corps Guidance on Rapanos
On June 5, 2007, EPA and the Corps of Engineers issued eagerly awaited
guidance to their field offices on how Rapanos should be interpreted in jurisdictional
determinations, agency enforcement actions, and other agency actions.43 The
guidance does not impose legally binding requirements on EPA or the Corps, and
may not apply in a particular circumstance.
The Corps and EPA had previously issued other guidance, attempting to clarify
the Court’s rulings on the jurisdictional issues discussed here. For example, the
agencies’ current interpretation of jurisdiction over the “isolated waters” addressed
in SWANCC was presented in guidance issued in January 2003, nearly two years after
that ruling.44 Following the Rapanos ruling, in June 2006, the agencies said that they
would develop formal guidance, but in the mean time provided informal guidance
recommending that enforcement and field staff temporarily delay making CWA
jurisdictional determinations or refer new regulatory enforcement actions for areas
42
126 S. Ct. at 2224.
43
EPA, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in
Rapanos v. United States and Carabell v. United States (June 5, 2007), available at
[http://www.epa.gov/cgi-bin/epaprintonly.cgi].
44
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 1991-1998, January 15, 2003.
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beyond the limits of traditional navigable waters. Except for projects involving
traditional navigable waters, permit decisions would have to be deferred until
additional guidance was issued, or permits would be issued based on the pre-Rapanos
jurisdictional limits and could be revisited upon request after final guidance was
issued.
The 2007 guidance, superseding the June 2006 informal guidance, adopts the
Kennedy-test-or-plurality-test view, with the addition of agency interpretation of
vague phrases in the Kennedy and plurality opinions. Reportedly, the Bush
Administration was intensely lobbied as to the guidance’s content, prior to issuance45
— particularly as to its initial reading of the Kennedy concurrence’s reference to
“similarly situated lands in the region.” The guidance has three parts, addressing
waters that are (1) categorically within the scope of “waters of the United States”; (2)
within “waters of the United States” or not, on a case-by-case basis; or (3)
categorically outside the scope of “waters of the United States.”
(1) Waters categorically labelled “waters of the United States” — that is,
without a case-by-case inquiry into whether there is a “significant nexus” with a
traditional navigable water — are first, traditional navigable waters46 and their
adjacent wetlands. Under this test, the existence of a continuous surface connection,
as demanded by the plurality, but not Kennedy or the dissenters, is required to
establish adjacency. Categorical “waters of the United States” also include nonnavigable tributaries of traditional navigable waters, where such tributaries are
“relatively permanent” (i.e., typically flowing year-round or at least seasonally) and
adjacent wetlands with a continuous surface connection to such tributaries (not
separated by uplands, berms, etc.).
(2) Waterbodies that are “waters of the United States” on a case-by-case basis
are those dependent on a finding of a “significant nexus” with a traditional navigable
water, per the Kennedy concurrence. They include non-navigable tributaries that are
not relatively permanent (such as intermittent and ephemeral streams) and their
adjacent wetlands, and wetlands adjacent to but that do not directly abut a relatively
permanent non-navigable tributary. The guidance states that, in making the site- and
fact-specific analysis to determine “significant nexus,” the agencies will evaluate
hydrology (e.g., proximity to traditional navigable waters), ecologic factors (e.g.,
ability of wetlands to trap and filter pollutants or store flood waters), and flow
characteristics (flow and functions of the tributary and adjacent wetlands). The
purpose of these tests is to demonstrate a connection and the role of a tributary and
any adjacent wetlands in protecting the chemical, physical, and biological integrity
of downstream traditional navigable waters.
(3) Waterbodies not generally considered “waters of the United States” are
swales or erosional features (e.g., gullies) and ditches (including roadside ditches)
excavated wholly in and draining only uplands, and that do not carry a relatively
45
See, e.g., John M. Broder, "After Lobbying, the Wetlands Rules Are Narrowed," N.Y.
Times, July 6, 2007, A1.
46
These include all waters described in 33 C.F.R. § 328.3(a)(1) (Corps of Engineers) and
40 C.F.R. § 230.3(s)(1) (EPA).
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permanent flow of water. The agencies generally will not assert jurisdiction over
these waterbodies.
To provide greater transparency of decisionmaking, the guidance requires the
Corps and EPA to be more thorough in documenting their jurisdictional
determinations. To meet this requirement, the Corps will use a standardized
documentation form and will post results on District websites.47 These steps respond
to criticism, such as detailed in a GAO report, that Corps district offices have used
differing practices in making jurisdictional determinations and that few districts made
their documentation public.48
The guidance and accompanying Corps-EPA memoranda49 include several
procedural changes affecting the regulatory program. The 2003 post-SWANCC
guidance required Corps Districts to seek Headquarters concurrence for actions
where they would assert jurisdiction over non-navigable, intrastate waters, including
wetlands. The new guidelines replace coordination procedures in the 2003 guidance
(other aspects of the 2003 guidance remain in effect) to require that all decisions
involving such waters be elevated for Corps Headquarters review, regardless whether
jurisdiction is asserted or not. In addition, the new guidance provides an opportunity
for EPA to review and coordinate the determination at a higher level if there is a
dispute regarding an action undergoing a “significant nexus” evaluation. Industry
groups have complained that the extra scrutiny will add costly delay.
Overall, stakeholder groups, including industry, environmental advocates, and
states, expressed disappointment or frustration with the new guidance — some
believing that it goes too far, others believing that it does not go far enough.
Generally, most agree that implementing the “significant nexus” test will be difficult,
because they believe that the guidance is complicated and vague. Industry groups
said that because there are no clear guideposts on this key point, the guidance fails
to provide the certainty desired by the regulated community. Environmentalists said
that the “significant nexus” test in the guidance is more limited than the standard
described by Justice Kennedy, because although his opinion recognizes the impact
of losing wetlands or other small tributaries on large waters,50 the guidance does not
account for cumulative effects. In evaluating “significant nexus,” the guidance
focuses only on a tributary and wetlands adjacent to that tributary.
On the other hand, environmentalists point out that the guidance includes a new
standard for determining jurisdiction that could have a positive impact on protecting
wetlands. Previously, regulators have based jurisdictional determinations primarily
on whether an individual wetland is connected to navigable waters. Under the new
47
The Corps has eight U.S. Divisions (which generally follow watershed boundaries),
further subdivided into 38 Districts.
48
U.S. General Accounting Office (now Government Accountability Office), “Waters and
Wetlands, Corps of Engineers Needs to Evaluate Its District Office Practices in Determining
Jurisdiction,” February 2004, GAO-04-297.
49
See [http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm].
50
126 Sup. Ct. at 2245-46 (2006).
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guidance, regulators can find wetlands jurisdictional because surrounding wetlands,
taken as a whole, have a “significant nexus.” Some in the development community
fear that, as a result, regulators will be looking not just at the property proposed for
development, but also at everything around it.
The guidance leaves many questions unanswered as to CWA jurisdiction over
wetlands not immediately adjacent to traditional navigable waters — including how
it will be applied in states within the Seventh and Ninth Circuits, where appellate
courts have said that the Kennedy test alone is controlling. Very likely, the guidance
will evolve: the Corps and EPA are providing a six-month comment period and
within nine months from date of issuance “will either reissue, revise, or suspend the
guidance after carefully considering the public comments....”51 The potential for
litigation to challenge the guidance is currently unclear given that the guidance is
effectively only an interim pronouncement.
EPA and the Corps acknowledge that questions are likely to remain, noting,
“While today’s guidance provides more clarity for how decisions of the jurisdictional
status of non-navigable tributaries and their adjacent wetlands will be made, it is
likely that legal challenges to the scope of CWA jurisdiction will continue.”52
Further, EPA and the Corps said that they intend to consider jurisdictional issues
“through rulemaking or other appropriate policy practice,” but did not commit to
specific actions or timing.53 This statement will encourage those who argue that
revised regulations are needed to resolve lingering interpretive questions. Others
contend that a legislative remedy is required.
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
51
72 Fed. Reg. 31824 (June 8, 2007).
52
U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, “Key
Questions for Guidance Release” (June 2007), p. 7.
53
U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, “Guidance
Highlights for Rapanos and Carabell Decision” (June 2007), p. 3.
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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.
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issuance of federal permits.4254 Thus, by removing the need for a CWA permit, a nonjurisdictional determination would eliminate ESA consultation, as well. 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. EPA said in June
2007 that it may issue additional guidance concerning the effect of Rapanos on other
CWA programs that use the common “waters of the United States” definition.55
SWANCC found invalid the assertion of CWA jurisdiction over isolated, nonnavigable 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
tributaries and adjacent wetlands, asking which of these have the “significant nexus”
to navigable waters SWANCC 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.
54
55
16 U.S.C. § 1536.
U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, “Key
Questions for Guidance Release,” p. 4.
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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 waters/wetlands to separate them
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.4356 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 and wetlands that lack a direct surface
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/wetlands are critical for protecting the integrity
integrity of waters, habitat, and wildlife downstream.
In SWANCC, the Supreme Court did not draw a bright line for purposes of
determining the limits of federal jurisdiction (many wetland scientists do not believe
that a bright line is possible, in any case). While the ruling reduced 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.
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jurisdiction over some previously regulated wetlands, even nearly fivemore than six years later it
it remains difficult to determine the precise effect of that decision. Many affected
interests (states and the regulated community) contend that the 2003 guidance from
the Corps
and EPA hasdid not adequately defineddefine the scope of regulated areas and wetlands
affected by SWANCC and subsequent court rulings.44 Congress has challenged the
agencies’ current guidance, issued in 2003: in May 2006, 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. (When the 109th
Congress adjourned in December 2006, it had not completed action on H.R. 5386,
thus carrying over this legislative activity into the 110th Congress.) 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.45
wetlands affected by SWANCC and subsequent court rulings.57 The Rapanoses and
the Carabells had hoped that the Supreme Court would clarify the
jurisdiction issue
and that the Court would further narrow the program’s geographic
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 not bring the desired
clarity of meaning in legal and
policy terms.
Estimates of the types of wetlands and amounts of acreage affected by
SWANCC, Rapanos, and 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.4658 Depending on how key terms are now defined, reduced federal
jurisdiction could affect very small or very large 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:56
Leibowitz, Scott G., “Isolated Wetlands and Their Functions: An Ecological
Perspective,” Wetlands, vol. 23, no. 3, September 2003, pp. 517-531.
57
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.
46 (H.Hrg. 108-58), 200 p.
58
Kusler, Jon, The Association of State Wetland Managers, “‘Waters of the U.S.’ After
SWANCC,” August 12, 2005 (draft), p. 6.
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.
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CRS-16
jurisdiction could range from 20% to 80% of the Nation’s total estimated 100 million
acres of wetlands.59 Following the Rapanos decision, concern was 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.
A reduction in CWA jurisdiction affects implementation of the 404 and possibly
other CWA programs. Earlier this yearEarly in 2006, 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 will60 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. In terms of stream
hierarchy, these waters are often referred to as first-order streams. Some estimate
that the smallest, or headwater, first- and second-order streams represent about 75%
of the nation’s stream network. These streams, if left unprotected by expansive
interpretation of the Court’s rulings, are at risk from a variety of polluting activities
due to urbanization, construction, and channelization for flood control purposes.61
In explaining the new guidance, the Corps and EPA said, “We expect that many of
these [intermittent and ephemeral] streams will be able to satisfy one of the standards
established in the Rapanos decision,” but that it will take time to evaluate casespecific data.62
As noted, the uncertainties resulting from the Rapanos decision led to
widespread anticipation that the Corps and EPA would 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
onin August 12006 that the agencies arewere 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
to clarify CWA jurisdiction in light of the decision63 — the guidance that was
eventually released in June 2007. While many observers acknowledge that guidance
59
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.
60
Grumbles, Benjamin H., Assistant Administrator for Water, EPA, letter to Ms. Jeanne
Christie, Association of State Wetland Managers, January 9, 2005 (sic), p. 3.
61
American Rivers and Sierra Club, “Where Rivers Are Born: The Scientific Imperative for
Defending Small Streams and Wetlands,” February 2007, p. 7.
62
U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, “Key
Questions for Guidance Release,” p. 1.
63
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, 109th Congress, 2d session.
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will be useful, some 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 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.
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rules are subject to legal challenge and can be tied up in court for years before
they are implemented.5164
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.5265 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 Nationnation’s lands in federal
ownership. Moreover, they were never intended to be a seamless group that would
fill all possible gaps.
SWANCC, Rapanos, and 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 for consistent, minimum standards to regulate wetlands.
None of these court rulings prevents states from protecting non-jurisdictional waters
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.5366 Since 2001, a few states have
passed new legislation or updated water quality regulations; the issue remains under
64
Murphy, James, “Rapanos v. United States: Wading Through Murky Waters,” National
Wetlands Newsletter, vol. 28, no. 5, September-October 2006, p. 19.
65
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.
66
Kusler, p. 15.
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consideration in several states, where competing proposals that are viewed by some
as strengthening and by others as weakening wetland protection are being debated.5467
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.”5568 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.
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.
In the 109th Congress, bills were introduced to address the CWA jurisdictional
issues discussed here in different ways, but Congress took no action. One proposal
(H.R. 1356/S. 912, the Clean Water Authority Restoration Act of 2005) would have
provided a broad
statutory definition of “waters of the United States”; would have
clarified that the
CWA is intended to protect U.S. waters from pollution, not just
maintain their
navigability; and would have included a set of findings to assert
constitutional constitutional
authority over waters and wetlands. Other legislation intended to
restrict regulatory
jurisdiction also was introduced (H.R. 2658, the Federal Wetlands
Jurisdiction Act of 2005). It
67
Goldman-Carter, Jan, “Isolated Wetland Legislation: Running the Rapids at the State
Capitol,” National Wetlands Newsletter, May-June 2005, pp. 27-29.
68
Odell, Turner, “On Soggy Ground — State Protection for Isolated Wetlands,” National
Wetlands Newsletter, September-October 2003, p. 10.
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would have narrowed the statutory definition of
“navigable waters” and defined
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. Continued attention to these issues
in the 110th Congress is likely, but the direction and agenda for future congressional
activity is unclear.
55
Odell, Turner, “On Soggy Ground — State Protection for Isolated Wetlands,” National
Wetlands Newsletter, September-October 2003, p. 10
jurisdiction.
Legislation similar to the Clean Water Authority Restoration Act of 2005 has
been introduced in the 110th Congress (H.R. 2421, the Clean Water Restoration Act
of 2007). Similar legislation, S. 1870, also titled the Clean Water Restoration Act
of 2007, has been introduced in the Senate. The House Transportation and
Infrastructure Committee held hearings on H.R. 2421 and related jurisdictional issues
on July 17 and July 19. Proponents contend that Congress must clarify the important
issues left unsettled by the Supreme Court’s 2001 and 2006 rulings and by the recent
Corps/EPA guidance. Bill sponsors argue that the legislation would “reaffirm” what
Congress intended when the CWA was enacted in 1972 and what EPA and the Corps
have subsequently been practicing until recently, in terms of CWA jurisdiction.
However, critics assert that the legislation would expand federal authority, and thus
would have unintended but foreseeable consequences that are likely to increase
confusion, rather than settle it. Critics question the constitutionality of the bill,
arguing that, by including all non-navigable waters in the jurisdiction of the CWA,
it exceeds the limits of Congress’s authority under the Commerce Clause. Supporters
contend that the legislation is properly grounded in Congress’s commerce power. In
light of the widely differing views of proponents and opponents, future prospects for
this legislation are uncertain. The Administration has not taken a position on any
legislation to clarify the scope of “waters of the United States” protected under the
CWA.