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The Clean Water Act and Wetlands: Expansion of Federal Jurisdiction

MN LICA News, Dec. 2013 – Jan. 2014, p. 5

As published in MN Land Improvement Contractors of America News, page 5 (December 2013 – January 2014), available at http://www.mnlica.org/News_Letters/MNLICA_Dec_Jan_2014.pdf

In 1948, Congress passed the Federal Water Pollution Control Act, the first piece of comprehensive federal law to address water pollution.  Despite its efforts, the country’s polluted water problems persisted and in 1969, the Cuyahoga River, a tributary of Lake Erie in Northeast Ohio, even caught fire.  In 1972, Congress passed a number of amendments to the Act which, for the first time, gave the government and Environmental Protection Agency (“EPA”) real “teeth” in combating water pollution.  These amendments are commonly referred to as the “Clean Water Act” (“CWA”).  The CWA’s objective is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  The provision most commonly encountered by Minnesotans is Section 404, which requires a permit from the Army Corps of Engineers to discharge dredged or fill material into navigable waters.

But what are “navigable waters”?  You might have heard someone say, “If you can float a canoe, it’s navigable.”  That simplistic of a test would certainly help, but like many legal issues, the answer is far more complex.  “Navigable waters” are defined as “waters of the United States.”  Environmental groups sued the Corps in 1975, claiming it was shirking its responsibilities by adopting too narrow of a definition.  The Corps was forced to issue a new regulation which swept in a broad range of wetlands.  Since that time, the U.S. Supreme Court has issued three decisions on whether wetlands are properly covered by the CWA’s jurisdiction.

The most recent decision came in 2006 in the case Rapanos v. U.S.  The issue before the Court was whether wetlands connected to navigable waters by a series of drainage tiles and manmade ditches were “isolated” and therefore not covered, or were “adjacent” and therefore subject to the Corps’ permitting authority.  No opinion garnered the support of at least five justices, which is required to set binding precedence.  Three justices agreed with an opinion authored by Justice Scalia, which became known as the “plurality opinion,” while Justice Kennedy concurred with the plurality, but authored his own standard.  Justice Scalia held that federal jurisdiction requires the wetland to have a continuous surface connection to a channel with a relatively permanent body of water connected to traditional interstate navigable waters.  Justice Kennedy held that federal jurisdiction exists if there is a “significant nexus” between the wetlands in question and navigable waters in the traditional sense.  He wrote that “wetlands possess the requisite nexus . . . if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemistry, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”  In U.S. v. Bailey, the Eighth Circuit Court of Appeals, which sets binding precedence in Minnesota, held that federal jurisdiction exists if either Scalia’s or Kennedy’s tests are met.

Rapanos left the regulated community struggling to determine when a wetland is covered by the CWA.  This issue is very significant.  In Minnesota, for example, the Corps office out of St. Paul has determined in more recent years that certain methods of drain tile installation result in a discharge of dredged or fill material which, if the wetland is covered by either Scalia or Kennedy’s test, would require a Section 404 permit.

Since Rapanos, the EPA and Corps have only issued guidance documents on how to apply the Court’s decision for making jurisdictional determinations.  This past September, however, the agencies sent a draft rule to the Office of Management and Budget for review.  The rule has not yet been released or noticed for public comment.  At the end of September, the EPA released a report titled Connectivity of Streams and Wetlands to Downstream Waters:  A Review and Synthesis of the Scientific Evidence for public review and comment.  The Scientific Advisory Board, an independent panel within the EPA, will review the public comments and the report in public meeting this December.

The report will serve as the scientific support for the EPA and Corps’ new rule defining “waters of the U.S.”  The report has many concerned that the agencies’ new rule will greatly expand federal jurisdiction to include all areas of a state that are “wet.”  It states that all streams and manmade drainage systems, regardless of their size or frequency of flow, are connected to downstream waters.  It also states that all wetlands and open waters in floodplains of streams or in riparian areas are integrated with streams and rivers.  It holds that very few wetlands are truly “isolated,” which will likely lead the Corps to requiring Section 404 permits for even more wetlands in the state.    While clarification from either Congress or the agencies on these issues is fundamentally necessary, the report does little to provide a clear understanding of what wetlands have a “significant nexus” to covered waters.  The reaction from Congress to the report has been less than positive, and many speculate the agencies will issue a broad rule in 2014.

© 2013 Rinke Noonan