Summary: In Policy Brief #1, we respond to
a recent story in the New York Times on federal clean water policy in the aftermath of two key Supreme Court decisions. We explain the Supreme Court's rulings in SWANCC and Rapanos, as well as another critical
Clean Water Act (CWA) case,
Riverside Bayview Homes, Inc. In our view, the Court properly delineated the reach of the federal government's control over water bodies in these cases. Further, we believe
S. 787, "The Clean Water Restoration Act," advocated by some as the "solution" to clarify the Court rulings, is the wrong approach. By removing the word "navigable" from the CWA, S. 787 overturns the longstanding federal-state balance of regulatory authority established by the CWA, giving EPA and the federal government sweeping authority to regulate water bodies at the expense of states.
Issue: On February 28, 2010, the New York Times
published an article titled "Rulings Restrict Clean Water Act, Foiling EPA." According to the Times, "Thousands of the nation's largest water polluters are outside the Clean Water Act's reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators."
Background: Activists quoted in the article contend that the Supreme Court's decisions in two Clean Water Act cases,
Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and
Rapanos et al. v. United States (Rapanos), remove EPA's ability to regulate waterways. Without federal control, they argue, there is no backstop authority-leaving water bodies vulnerable to dangerous pollution. This argument reflects a flawed understanding of the CWA.
The CWA gives states primary authority to regulate water bodies. In Section 1, Title 101, the Act states that, "it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources." [Emphasis added] Waters that fall outside of the reach of EPA are waters of the state and are covered by state protections.
Supreme Court
United States v. Riverside Bayview Homes Inc.: Issued prior to SWANCC and Rapanos, Riverside established an important clean water legal predicate. The case involved a housing developer who owned land adjacent to a lake. He placed fill materials on the property without obtaining a CWA permit. The Supreme Court ruled against the developer and unanimously upheld the U.S. Army Corps of Engineers' rulemaking to include "wetlands adjacent to navigable waters or interstate waters and their tributaries" within the definition of "waters of the United States," and thus federal control.
Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers: After Riverside, the Court issued its decision in SWANCC to further clarify and demarcate federal authority over water. In this case, the Solid Waste Agency of Northern Cook County (SWANCC), consortium of suburban Chicago municipalities, selected an abandoned sand and gravel pit as a solid waste disposal site, which included excavation trenches with standing water. Those trenches were wholly within the state of Illinois and not connected to other waters. The decision to use the abandoned site involved filling in some of the trenches. SWANCC contacted the U.S. Army Corps of Engineers to see if a landfill permit was required under §404(a) of the CWA. Section 404 (a) authorizes the Corps to issue permits allowing the discharge of dredged or fill material into "navigable waters."
The Corps decided that a 404 permit was required, reasoning that the so-called "Migratory Bird Rule," applied to the SWANCC site. Since 1986, the Corps had used the "Migratory Bird Rule" to assert §404(a) jurisdiction over any body of water where a migratory bird could land. The Supreme Court correctly held that the "Migratory Bird Rule" exceeded the Corps' authority under §404(a). The Supreme Court distinguished the wetlands in Riverside with the isolated ponds in SWANCC. In Riverside, the "significant nexus between the wetlands and 'navigable waters'" was grounds for federal regulation, while in SWANCC, the ponds were not adjacent to open water, putting them under state control.
Rapanos v. United States: The Rapanos case shifted the burden of proof from the permitee to EPA over whether water can be claimed as a "water of the United States" and therefore subject to federal regulation. Rapanos involved a land owner who backfilled wetlands with "sometimes-saturated soil conditions" 11 to 20 miles away from the nearest navigable waters. Again, the Court distinguished the wetlands in Rapanos from those in Riverside, as well as the ponds in SWANCC, concluding that, "Wetlands with only an intermittent, physically remote hydrologic connection to 'waters of the United States' do not implicate the boundary-drawing problem of Riverside, and thus lack the necessary connection to covered waters that we described as a 'significant nexus' in SWANCC."
Clean Water Restoration Act: Activists have decried these Supreme Court cases, arguing that they remove federal jurisdiction over water bodies. Their "solution" is S. 787, the Clean Water Restoration Act (CWRA). The central provision of S. 787 strikes the word "navigable" from the CWA and replacing it with "waters of the United States." By striking the term "navigable waters" wherever it appears, replacing it instead with "waters of the United States," S. 787 fundamentally changes the underlying premise of the Clean Water Act and how it has been interpreted since 1972. The term "navigable" is rooted in Congress' power to regulate interstate commerce under the Constitution. Removing this term not only gives blanket authority over all water to the federal government, it erases any distinction between federal and state jurisdiction over waters.
If the intention behind S. 787 is to, as the Act states, "return regulators' authority over all waters that were regulated before the Supreme Court decisions," then, in effect, every place where a water could provide a habitat for a migratory bird would require a §404(a) permit from the Corps. Moreover, the waters that would be covered under this new definition include "all interstate and intrastate waters, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds, all tributaries of any of the above waters, and all impoundments of the foregoing."
The CWRA would also, for the first time in 37 years of federal water law, establish the predicate for extending federal regulatory authority over ground water. While the bill purports to exclude ground water from federal jurisdiction, it nonetheless states that "water is transported through interconnected hydrological cycles" and that "pollution...of any part of an aquatic system may affect...other parts of the aquatic system." This language could easily be interpreted by regulators to establish a nexus between above-ground activities and their impacts on aquifers, springs, and wells. (During a markup on S. 787 in the Senate Committee on Environment & Public Works, committee Democrats voted against an amendment to clarify that groundwater would not be included within the ambit of the act.)
In fact, the "interconnected hydrological cycle" language in S. 787 is so expansive that it could extend CWA jurisdiction to air pollution, based on the fact that rain falls through the air with the potential to absorb pollutants.
Again, if the intention of S. 787 is to restore the pre-SWANCC and Rapanos playing field and provide regulators further clarity on the lines of federal jurisdiction, then why remove the term "navigable," and replace it with "waters of the United States," a term that is vague and unduly expansive? Because of this change in S. 787, the Congressional Budget Office is unable to determine how many water bodies are covered and warns that "the number of activities that would require a permit is uncertain."
It is clear that S. 787 would extend far beyond those waters subject to federal control before the SWANCC and Rapanos and open the door to a nearly-limitless federal power grab over water and property.
Conclusion: We all want clean, safe, water. However, placing the responsibility of keeping water clean is not solely the job of federal agencies in Washington. The federal government can set national water quality standards and should provide assistance in meeting clean water goals. States can and should establish additional water quality standards and requirements for waters that fall within their states. Simply put, states have a better understanding of how to protect and maintain the waters within their borders. The bottom line is that the federal-state balance in the Clean Water Act works. So we should continue to promote strong federal-state partnerships as the best means of "restoring and maintaining the chemical, physical and biological integrity of the Nation's waters."
