The Clean Water Act (CWA) is designed, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.A. § 1251. The Act declares an ambitious goal for the United States, “It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;” Id. Unfortunately, many of the key terms within the statute are somewhat vague and require very different practical applications depending on their interpretations. These conflicting interpretations make enforcing the initiatives in the Act and meeting its goals more challenging. For instance, the mandatory permit process under the CWA only applies to discharges of a pollutant into navigable waters. Therefore the scope of EPA’s regulatory jurisdiction under the CWA is dependent on the definition of navigable waters. The term “navigable waters” is defined by the EPA as, “the waters of the United States, including the territorial seas.” 33 U.S.C.A. § 1362 (7). This vague definition of navigable waters leads to more questions of statutory interpretation, namely what waters are included in, “waters of the United States (U.S.)”. Generally, “waters of the U.S.” includes navigable-in-fact waters or those waterways that can be or are used in commerce and are subject to the ebb and flow of the tide. 33 C.F.R. § 329.4. However, there are many other waterways in the United States besides those waters directly engaged in commerce. The legal debate as to whether narrow or shallow rivers and streams should be included in the waters of the United States and in turn whether discharges into them are subject to the EPA’s permit process under the CWA is wide and complex.
Several Supreme Court rulings address the vagueness of the term “waters of the U.S.” and make an attempt to further define the term. Among those rulings is United States. v. Riverside Bayview. The Riverside Court “conclude[d] that it is permissible for the Army Corps of Engineers to define ‘waters of the United States’ as encompassing wetlands adjacent to other bodies of water over which the Corps has jurisdiction.” 474 U.S. 121, 135, (1985). Therefore, any wetland that actually abuts a navigable-in-fact waterway, such as a river or lake, is within the scope of the CWA’s provisions. Later the Court clarified its position in Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, commonly referred to as SWANCC. 531 U.S. 159, (2001). The majority wrote, “It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.” Id. at 167.
The most recent judicial attempt to interpret “waters of the United States” was the 2006 U.S. Supreme Court case, Rapanos v. United States. 547 U.S. 715, (2006). The Rapanos decision written by Justice Scalia held that the term “navigable waters,” under CWA, “includes only relatively permanent, standing or flowing bodies of water… The phrase does not include channels through which water flows intermittently or ephemerally.” Id. at 739. Justice Scalia went on to clarify that, “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.” Id. at 742.
The Rapanos case was unique because the Court was extremely divided. Only three justices joined or concurred in Justice Scalia’s opinion, four justices dissented and Justice Kennedy wrote his own opinion concurring in the judgment. Justice Kennedy’s concurrence in the judgment allowed the Court to form a plurality opinion (Justice Scalia’s opinion) and a judgment; his opinion is considered a controlling concurrence. A controlling concurrence is a concurrence that is adopted as law by the majority of lower courts. Lower courts will follow a controlling concurrence rather than a plurality opinion for a number of reasons. Some courts choose to adopt the law of a controlling concurrence because part of the concurrence’s reasoning overlaps with the plurality opinion or with the dissenting opinion and therefore that interpretation of the law is the only reading that a majority of the justices found persuasive. See Waters v. Churchill, 511 U.S. 661, 685, (1994) (Souter, J., concurring). (analyzing the points of agreement between plurality, concurring, and dissenting opinions to identify the legal test that lower courts should apply). Alternatively, lower courts will follow a controlling concurrence because it represents the narrowest change in the law. Marks v. United States, 430 U.S. 188, 193, (1977). In the Rapanos case, Justice Kennedy’s definition of waters of the U.S. was encompassed in the definition accepted by the four dissenting Justices. His definition was also the lesser deviation from the legal definition provided by the Army Corps of Engineers at the time of the case.
Consequently, in practice, the definition of waters of the United States that is most commonly endorsed by agencies and courts is the definition laid out in Justice Kennedy’s concurrence. Justice Kennedy wrote that, “Absent a significant nexus, jurisdiction under the Act is lacking. Because neither the plurality nor the dissent addresses the nexus requirement, this separate opinion, in my respectful view, is necessary.” Rapanos, 547 U.S. at 767. Justice Kennedy clarified that a waterway has a significant nexus to a navigable-in-fact waterway if it serves a critical function related to water quality. The waterway must a substantial impact on the traditionally navigable waterway, not simply a speculative impact. Id. at 717.
Several rulings since Rapanos applied the significant nexus test from Justice Kennedy’s concurrence. See United States v. Moses, 496 F.3d 984, 990 (9th Cir. 2007) (stating that Justice Kennedy’s opinion in Rapanos is the controlling law and holding that a manmade creek empting into a river is a ‘water of the U.S.’ under the CWA). N. California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007). (holding that a pond is a ‘water of the U.S.’ because it has a significant effect on the biological integrity of an adjacent river and therefore meets Justice Kennedy’s significant nexus test in Rapanos) (amended holding 496 F.3d 993, 999–1000 (9th Cir.2007) (limiting the holding to the specific facts of the case). Other courts adopted Justice Scalia’s actual surface water connection test from the plurality opinion because it was the official judgment of the court. See, E.g., Haniszewski v. Cadby, 03-CV-0812 SR, 2013 WL 6816622 at *8 (W.D.N.Y. Dec. 20, 2013). (holding that a wetland drain was not a water of the U.S. because it did not have a continuous surface connection to the necessary navigable waterway as required by Justice Scalia’s test in Rapanos). Some jurisdictions have held that either test is acceptable. United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006). (The federal government can establish CWA jurisdiction if it can meet either the plurality’s or Justice Kennedy’s standard as laid out in Rapanos.)
Essentially instead of clarifying the CWA’s definition of waters of the U.S., the Rapanos case further divided the circuit split on the law resulting in confusion over the reach of the EPA’s jurisdiction under the CWA. United States v. Hamilton, 952 F. Supp. 2d 1271, 1274 (D. Wyo. 2013). (noting that the Tenth Circuit has yet to decide which test controls in Clean Water Act cases). United States v. Osborne, 1:11CV2039, 2012 WL 4483880 at 3 (N.D. Ohio Sept. 27, 2012). (noting that the Third, Fourth, Fifth, Sixth and Ninth Circuits have reserved the issue of which Rapanos test controls in CWA enforcement actions). The uncertainty has been a problem not only for the EPA’s ability to bring enforcement actions, but also for dischargers. Dischargers must obtain a permit from the EPA if they are releasing a pollutant into a water of the U.S. Since the definition of waters of the U.S. varies, dischargers are unsure of when they must obtain a permit or risk liability. In an attempt to alleviate the confusion and jurisdictional problems, on March 26th, 2014, the EPA issued a proposed rulemaking aimed at clearly defining the term “waters of the U.S.”
The agency proposes to define “waters of the United States” in section (a) of the proposed rule for all sections of the CWA to mean:
traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional ‘waters of the United States’ by rule – no additional analysis would be required.
Docket No. EPA-HQ-OW-2011-0880 at 2.
Although EPA administrator Gina McCarthy stated in an editorial that the proposed rule will not alter the EPA’s current jurisdiction under the CWA, an EPA press release admits that the new definition encompasses[i]:
-Most seasonal and rain-dependent streams …
-Wetlands near rivers and streams …
-Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant[ii]
Depending on the court and which definition of waters of the U.S. that court has applied in the past, the new definition may very well be an expansion of EPA’s jurisdiction. The new rule would grant EPA the authority to regulate non-navigable waters such as wetlands, tributaries and intermittent and seasonal streams that previously may have been outside its jurisdiction because these waters are not directly connected to a navigable waterway on the surface as required by Justice Scalia’s test in Rapanos. The EPA has deemed regulation of these waters important because they are hydrologically connected to navigable waters and consequently impact their flow and water quality. As EPA notes on its website, it was previously unable to bring some enforcement actions due the inconsistencies in its jurisdictional authority regarding seasonal flowing waters, tributaries and intermittent streams[iii]. However, Administrator McCarthy’s statement claiming that the new rule only clarifies EPA’s jurisdiction and does not expand it, is not entirely disingenuous as the new rule is fairly consistent with Justice Kennedy’s significant nexus test.
Overall, the rule should help EPA advance the goals Congress declared in the CWA. Although not everyone is supportive of the proposed definition, farmers and industry interest groups are concerned that the new rule will widen their scope of liability[iv] Their concern is that the new rule will expand EPA’s authority to include minor discharges from remote agricultural sources if the discharges flow into small streams, wetlands, drainage ditches or certain sub-surface water reservoirs. Industry groups also raised concerns that the new rule is another political step toward increasing regulation of non-point sources. Non-point source discharges include runoff from agricultural practices and stormwater discharges. 33 U.S.C. § 1362 (14). Non-point source discharges have traditionally been exempt from the NPDES permit process under the CWA. Before the rule is approved, everyone will have the opportunity to voice their concerns as the proposed rule will be viewable and available for public comment on the federal registrar’s website shortly[v].
–Amanda Urban is a General Member on MJEAL. She can be reached at firstname.lastname@example.org
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.n.
[i] Gina McCarthy, Clearer protections for clean water, Washington Post. (March 25, 2014). http://www.huffingtonpost.com/gina-mccarthy/clearer-protections-for-c_b_5029328.html.
[ii] Julia Q. Ortiz, EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal, Environmental Protection Agency. (March 25, 2014). http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca600557e30.
[iii] The website notes three enforcement actions in Arizona, Georgia and Texas that EPA had to discontinue pursuing due to jurisdictional issues under the CWA. http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm
[iv] Ron Nixon, E.P.A.’s proposed rules on water worry farmers, New York Times (March 12th, 2014). http://www.nytimes.com/2014/03/13/us/politics/environmental-protection-agency-water-rules.html?_r=0.
Richard Gupton, Waters Advocacy Coalition, Agricultural Retailers Association. (Feb 6th, 2014). http://www.aradc.org/browse/resources/viewdocument/?DocumentKey=c09f34e9-2cd4-41bf-8e31-a0041aa1f8e6.