Wading Into The Muddle

SINCE ENACTMENT of the Clean Water Act more than 30 years ago, many people had assumed that the creek near their homes was protected from unfettered discharges of pollutants by the federal law. They had assumed this whether the streambed was dry much of the year and carried water only during the wetter seasons or whether water flowed all year round.

The U.S. Supreme Court in 2006 tossed this assumption into the wastebin. It did so by paring the U.S. government's jurisdiction over wetlands, saying that some isolated wetlands were beyond the federal government's control. Although the decision revolved around two cases against Michigan landowners charged with filling wetlands without a federal permit, it affects parts of the Clean Water Act for controlling industrial discharges into waterways and for preventing and containing oil spills.

Both Congress and the Bush Administration are responding to the Supreme Court ruling. Last month, the Environmental Protection Agency and the Army Corps of Engineers issued joint guidance, based on Supreme Court opinions, describing how they will determine whether a wetland is governed under the Clean Water Act. Congress, meanwhile, is considering legislation intended to return the reach of the Clean Water Act to where it was???or appeared to have been???for more than 30 years.

At the heart of these opposing responses is the Supreme Court's fractured decision indicating that not all waterways and wetlands fall under the control of the Clean Water Act. Members of Congress, legal scholars, and representatives of industry, environmental groups, and state water pollution regulators independently and consistently describe that decision as "muddled."

"Everyone agrees: Confusion reigns," says Robert V. Percival, director of the Environmental Law Program at the University of Maryland School of Law.

MUCH OF THE DEBATE within the Supreme Court and in Congress hinges around the term "navigable waters" in the Clean Water Act. The use of the phrase originated in laws that were forerunners of the modern Clean Water Act, which was enacted in 1972. The oldest of these predecessor statutes, the Rivers & Harbors Act of 1899, made dumping of refuse into navigable waters illegal and required a federal permit for excavating, filling, or altering the course of navigable waters. The 1972 Clean Water Act is, arguably, ambiguous. It states that its goal is to eliminate the discharge of pollutants into navigable waters and then defines "navigable waters" as "waters of the United States."

In the case in question, the Supreme Court split 4 to 1 to 4 over which waterways are, and which are not, protected by the Clean Water Act (C&EN, July 10, 2006, page 18). The three factions disagreed over what the term "navigable waters" encompasses.

An opinion by Justice Antonin Scalia and joined by Justices Clarence Thomas and Samuel A. Alito Jr. and by Chief Justice John G. Roberts Jr. said the Clean Water Act should exclude "dry channels through which water occasionally or intermittently flows." A bare minimum standard for inclusion under that law, Scalia wrote, is "the ordinary presence of water."

Justice Anthony M. Kennedy, however, argued in a solo opinion that the Clean Water Act can reasonably be interpreted to cover the paths of intermittent streams, which do not flow year-round.

Justice John Paul Stevens authored an opinion signed on by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter that favored a broader interpretation of the federal reach over waters and wetlands, one consistent with the way the Clean Water Act had been implemented since the 1970s.

The new guidance from EPA and the Army Corps attempts to incorporate the court's varying views. The guidance, designed to help regulators in both agencies determine what wetlands fall under their control, was released in June.

Gregory Peck, chief of staff in EPA's Office of Water, tells C&EN that while the guidance is focused on wetlands, it could, at least in theory, have broader implications for all Clean Water Act regulatory programs.

"Jurisdiction under the Clean Water Act is the same for all programs" under that law, including those governing discharges of wastewater and responses to oil spills, Peck explains.

The guidance will limit the number of streams for which discharge permits are required, predicts Linda Eichmiller, executive director of the Association of State & Interstate Water Pollution Control Administrators. It will also curb a federal program that sets a cap on the amounts of individual contaminants that are allowed in a polluted waterway, called total maximum daily loads, she says.

It remains unclear, however, exactly which streams no longer fall under federal Clean Water Act protection, Eichmiller says. The regulatory protection status of streams falling outside federal jurisdiction varies from state to state, she explains. Some states have laws that clearly define which waterways and wetlands are covered by their state pollution control regulations, Eichmiller tells C&EN, while others do not. States are just beginning to study the impact of the new guidance, she adds.

EPA's Peck says the guidance is unlikely to allow uncontrolled wastewater discharges into streams even if they are placed outside the reach of the Clean Water Act. Peck points out that the Scalia opinion says discharges of contaminants in intermittent channels likely violate the Clean Water Act if the pollutants wash downstream into a navigable waterway.

Likewise, Peck expects no changes to regulations under the oil spill prevention and response part of the Clean Water Act. Those provisions apply to oil discharged to land that makes its way into a waterway or water body, Peck says.

AN ANALYSIS of the guidance released earlier this month by the Transportation & Infrastructure Committee of the House of Representatives describes the areas that, according to Scalia's logic, would remain under the Clean Water Act.

"The corps and EPA would likely determine that the Clean Water Act applies to traditional navigable waters; wetlands adjacent to traditional navigable waters; non-navigable tributaries of traditional navigable waters that are relatively permanent, where the tributaries flow year-round or have continuous flow at least seasonally; or wetlands that directly abut such tributaries," the analysis says.

The new EPA-Army Corps guidance incorporates Kennedy's rationales as well as Scalia's, says Patrick A. Parenteau, director of Vermont Law School's Environmental & Natural Resources Law Clinic. For wetlands that don't fall into one of the broad categories outlined by Scalia, the corps and EPA will, on a case-by-case basis, apply a test Kennedy devised, Parenteau explains. The agencies will determine whether what Kennedy called "a significant nexus," or connection, exists between a non-navigable waterway or wetland and navigable water.

The upshot of all this, says Katherine Baer, director of river advocacy for the conservation group American Rivers, is that intermittent streams and isolated wetlands wind up in "perpetual bureaucratic purgatory." Determining, case by case, whether an isolated wetland or intermittent stream is protected under the Clean Water Act will place an "overwhelming burden" on EPA and Army Corps staff, she says.

"I don't think the government has the staff" to apply Kennedy's significant nexus test in all the cases likely to crop up, Parenteau says. "It's work-intensive."

The Supreme Court decision and the new federal guidance designed to implement them have distanced the law from the science of waterways and wetlands, Baer says.

Judith L. Meyer, emeritus professor of ecology at the University of Georgia, says even though geologically isolated wetlands may not appear to have a connection to other waterways, they are connected-physically, through groundwater flows, as well as biologically, she argues. "Science has shown there is a significant nexus," Meyer says.

Meanwhile, a bill pending in the House aims to clear up this confusion. Rep. James Oberstar (D- Minn.), chairman of the Transportation & Infrastructure Committee, introduced H.R. 2421 with the goal of restoring federal jurisdiction over waterways and wetlands to what it was before the Supreme Court's recent Clean Water Act decision. The bill has garnered nearly 170 cosponsors, including Rep. John Dingell (D-Mich.), the powerful chairman of the House Energy & Commerce Committee, and Rep. Vernon J. Ehlers (R-Mich.). Sen. Russell Feingold (D-Wis.) introduced a similar bill in the Senate on July 25.

Oberstar's bill appears relatively simple. It would alter the Clean Water Act by removing the term "navigable waters" and replacing it with "waters of the United States." And it defines "waters of the United States" as "all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing."

At a Transportation & Infrastructure Committee hearing on July 17, Montana Gov. Brian Schweitzer (D) voiced his support of the bill, noting that his state is home to intermittent streams that are headwaters of the Missouri and Columbia Rivers. "Clean water isn't necessarily a place where you float your boat," he said, endorsing the removal of the term "navigable waters" from the Clean Water Act.

Those favoring strong protections for private property rights and the rights of states are raising questions about H.R. 2421.

AT THE HEARING, Rep. John L. Mica (R-Fla.), ranking Republican of the committee, warned that the bill could vastly expand federal power over private property and "upset the long-standing cooperative relationship" between states and the federal government.

Oberstar's legislation would "intrude in an unprecedented way" on states' rights, M. Reed Hopper, an attorney with the Pacific Legal Foundation, told the committee. Hopper's organization supports limited government and strong property rights, and he represented landowner John Rapanos, who filled a wetland without a federal permit, in the 2006 Supreme Court case.

Hopper said H.R. 2421's "sweeping reach" would exceed Congress' authority under the U.S. Constitution to regulate interstate commerce. He predicted that if the legislation became law in its current form, then was challenged in court and the case rose to the current Supreme Court, a majority of the justices would strike it down as unconstitutional. The high court, however, might take a more favorable view if the bill defined where federal jurisdiction over waterways and wetlands stopped and state authority began, Hopper added.

Parenteau of Vermont Law School suggests that Kennedy likely would join Roberts, Alito, Scalia, and Thomas in finding the legislation in violation of Congress' constitutional authority to regulate interstate commerce. Parenteau suggests that Congress instead could craft a Clean Water Act bill based on a different constitutional authority.

The Constitution empowers Congress to enact legislation to implement treaties and that the U.S. is a partner in international accords to protect migratory birds, Parenteau tells C&EN. Implementing these treaties could include protecting non-navigable waters that migratory birds use as habitat, he suggests.

But Percival of the University of Maryland School of Law and Kim Connolly, an associate professor at the University of South Carolina School of Law, told the Transportation & Infrastructure Committee they believe H.R. 2421, as written, would pass muster with the Supreme Court under Congress' authority to regulate commerce. Percival said states have little motivation to regulate water pollution within their boundaries if the primary benefit of these efforts accrues to downstream states.

Oberstar would like his committee to vote on a Clean Water Act bill later this year, an aide to the committee tells C&EN.

Oberstar said at the hearing, "For close to 30 years, the scope of the Clean Water Act was settled case law." He continued, "The Supreme Court decided to reinterpret what most scholars, practitioners, and governmental agencies thought was settled law."

Passing legislation that effectively clarifies the reach of the Clean Water Act, Oberstar said, will mean the difference between meeting the objectives of the 1972 law-making U.S. waters suitable for fishing and swimming-and "admitting that waters today are as clean as they will ever be."