Murky Water | July 10, 2006 Issue - Vol. 84 Issue 28 | Chemical & Engineering News
Volume 84 Issue 28 | pp. 18-19
Issue Date: July 10, 2006

Murky Water

Supreme Court's fractured decision could curtail federal pollution controls in some waterways
Department: Government & Policy
News Channels: Environmental SCENE
The Supreme Court's ruling could affect pollution discharges into intermittent streams-those that do not flow yearlong-which are found widely in the U.S. West.
Credit: Photodisc
The Supreme Court's ruling could affect pollution discharges into intermittent streams-those that do not flow yearlong-which are found widely in the U.S. West.
Credit: Photodisc

The Supreme Court's Clean Water Act ruling last month means something for regulations on the discharge of pollutants, at least for some waterways. But understanding that impact is like trying to see fish in the chocolate-colored waters of a creek during a spring flood. The Environmental Protection Agency, state regulators, industry, and environmental groups are still sorting out how the high court's splintered ruling on wetlands could affect permits for releasing water pollutants and regulations to prevent oil spills.

The Supreme Court's June 19 ruling addressed two cases involving the development of isolated wetlands in Michigan, areas that a federal appeals court said were regulated under the Clean Water Act. The justices ruled 5 to 4 to send the cases back to the appeals court for further consideration. But they split into three factions over how to determine what wetlands areas are covered by the Clean Water Act and which are not (C&EN, June 26, page 7).

The decision is likely to have ramifications for parts of the law other than those protecting wetlands, including water quality standards, oil-spill prevention programs, and wastewater discharge permits.

"The Supreme Court says there are limits" to Clean Water Act protections, says Linda Eichmiller, executive director of the Association of State & Interstate Water Pollution Control Administrators. "We'll have to grapple with this."

The high court fractured 4-1-4 over the jurisdiction issue.

Justice Antonin Scalia called for narrowing the scope of the statute to exclude "dry channels through which water occasionally or intermittently flows." But he also indicated that this change would apply only to material used to fill wetlands, not to traditional water pollutants. Signing onto Scalia's opinion, which favored sending the cases back to the appeals court, were Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

A dissent by Justice John Paul Stevens, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter, said the cases should not go back to the appeals court for further proceedings and endorsed the broader regulatory reach of the Clean Water Act established over the past 30 years.

Justice Anthony M. Kennedy's solo opinion agreed with the Scalia-led plurality that the two wetlands cases needed to go back to the appeals court. But he opposed the plurality's views on limiting the scope of the Clean Water Act.

Because each of these three factions commands less than a majority of the Supreme Court, lower courts will have to sort out what parts of the rulings will guide them on Clean Water Act jurisdiction. And this issue might eventually work its way back to the Supreme Court for clarification.

The text of the Clean Water Act describes the statute's protections as encompassing "navigable waters" and defines that term as "the waters of the United States." This definition, Scalia's opinion pointed out, means that the term "navigable waters" signifies more than waterways that are or could, by reasonable changes, be used as transport for interstate commerce. Kennedy agreed with this view, saying that the language of the law explicitly extends its coverage to some nonnavigable waters.

Scalia argued that the Clean Water Act has "jurisdiction only over relatively permanent bodies of waters" (emphasis in the original). This, he said, "does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall."

Stevens' dissent countered, "Intermittent streams can carry pollutants just as perennial streams can." He added, "The inclusion of all identifiable tributaries that ultimately drain into large bodies of water within the mantle of federal protection is surely wise."

Kennedy, too, criticized Scalia's requirement for permanent standing water or continuous flow to fall under the Clean Water Act. Kennedy said this "makes little practical sense in a statute concerned with downstream water quality." Under Scalia's logic, "the merest trickle, if continuous," would be subject to federal regulation, but "torrents thundering at irregular intervals through otherwise dry channels would not," Kennedy wrote.

Scalia pooh-poohed suggestions in friend-of-the-court briefs from some state regulators and environmentalists that "polluters will be able to evade [industrial] permitting requirements ... by simply discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters." Lower courts have determined that discharges of a pollutant into intermittent channels likely violate the Clean Water Act if that pollutant naturally washes downstream, Scalia said.

Dredge spoils or fill materials, "unlike traditional water pollutants, are solids that do not readily wash downstream," according to Scalia. The Clean Water Act recognizes this distinction because it has separate permit requirements for pollution discharges and for filling wetlands, he reasoned.

But Kennedy saw no basis for having standards for Clean Water Act jurisdiction that differ depending on the pollutant. He pointed out that the act's definition of "pollutants" covers sewage, chemical waste, "and the discharge of dredged spoil, rock, sand, cellar dirt, and the like." The reason for this similar treatment in the law "may be that the discharge of fill material can impair downstream water quality," he wrote.

Stevens said although more dredged and fill material will likely stay put than will soluble pollutants, some fill makes its way downstream. With reasoning similar to Kennedy's, Stevens noted that EPA's authority to regulate water pollutants other than dredged and fill materials "stems from the identical statutory language" that gives rise to federal jurisdiction over wetlands.

Ultimately, Kennedy laid out a test to determine if wetlands fall under Clean Water Act protections. Regulators must show a significant nexus, or connection, between a wetland and navigable water, he said. Many legal analysts suspect that lower courts may adopt his logic for wetlands cases.

The unanswered question of whether the Clean Water Act covers intermittent streams could have ramifications for industrial pollution control.

Patrick A. Parenteau, director of Vermont Law School's Environmental & Natural Resources Clinic, says that given the plurality's decision, "I have a hard time seeing how most watersheds would qualify as a water of the United States." Parenteau filed a friend-of-the-court brief favoring broad Clean Water Act jurisdiction on behalf of the Association of State Wetland Managers.

According to an EPA estimate, about 59% of the 5.5 million linear km of streams in the U.S. are intermittent or ephemeral. (This figure excludes Alaska, for which data are not available.) EPA provided this estimate in January to the Association of State Wetland Managers.

The information EPA supplied to the wetland managers indicates that 40% of U.S. facilities with Clean Water Act pollution control permits, excluding those in Alaska, discharge into intermittent streams or "start reaches" that are at the head of a tributary system and have no other streams flowing into them. Start reaches are often intermittent, especially in the West. EPA did not break out the number of facilities that discharge into intermittent streams.

The approximately 15,000 facilities that discharge into intermittent streams or start reaches range from sewage treatment plants to organic chemical manufacturers and petroleum refiners, according to the agency.

Robert Elam, director of regulatory and technical affairs at the American Chemistry Council, says the chemical manufacturers group is tracking how the Supreme Court's recent decision will affect Clean Water Act jurisdiction. He says perhaps more than half of the volume of discharges from U.S. organic chemical manufacturing is released, after on-site treatment, directly into waterways by plants holding Clean Water Act permits. The remainder of the chemical industry's discharges goes to publicly owned sewage treatment plants with water act permits.

ACC is part of the broader industry-backed Federal Water Quality Coalition, which is closely following the Supreme Court decision.

"We'll have to wait for further cases" before the impact of the decision is clear, says the coalition's attorney, Frederic P. Andes, a partner in the Chicago and Washington, D.C., offices of Barnes & Thornburg. But he posits two possible ways that the plurality's decision could be employed in court.

"You could argue that the Scalia opinion is pretty breathtaking in its reach" and pares back the scope of the Clean Water Act significantly, Andes tells C&EN. A suit could also pick at Scalia's logic that the statute's jurisdiction is different for wetlands than for traditional pollutants, he says.

Parenteau has a blunter assessment: "I can't really find anything in the Scalia opinion that's workable in the real world."

Andes says although the high court focused on wetlands regulations, "I don't think we can say it has no impact" on other areas regulated under the Clean Water Act. But to launch a case arguing that an industrial facility either does not require or shouldn't need to renew a discharge permit, "you'd really have to be itching for a fight," he adds.

Joan Mulhern, senior legislative counsel at Earthjustice, says she expects to see more challenges to the scope of the Clean Water Act because the Court did not speak with one voice. Earthjustice, a nonprofit legal group, represents environmental organizations in court.

The Bush Administration is studying the decision to determine its impact on Clean Water Act cases. A statement from EPA says the Administration's goal is "to continue to use our clean water regulatory tools to provide effective and predictable protection for the nation's rivers, streams, and wetlands."

Eichmiller of the state water pollution regulators' association says if federal courts determine that the Clean Water Act discharge controls do not apply to intermittent or other waterways, many states have their own laws to fall back on. Some of these statutes, however, mandate that the state cannot have standards that are more stringent than the federal law, she tells C&EN. That could limit protections for some waterways.

Meanwhile, the Supreme Court's decision could influence a pair of Clean Water Act cases pending before the U.S. District Court for the District of Columbia. The American Petroleum Institute (API) and Marathon Oil are challenging a 2002 EPA rule revising the oil-spill prevention program under the Clean Water Act. This program is designed to prevent discharges of oil into waterways and to require containment of spills that occur. The industry-backed lawsuits asked the court to pare back EPA's Clean Water Act jurisdiction to traditionally navigable waters.

The trial court put those cases on hold pending the Supreme Court's Clean Water Act decision. API and Marathon are scheduled to let the district court know later this month how or whether they wish to proceed with their cases against the EPA rule.

Roberts, the chief justice, acknowledged the uncharted legal terrain that the court left. In an opinion concurring with Scalia's, he rued: "It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act. Lower Courts and regulated entities will now have to feel their way on a case-by-case basis."

"It's evolving," Eichmiller says. "Everyone's cogitating on it."

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