How Far Upstream? Interests, Science, and the Reach of the Clean Water Act (11/03)

The following column by AGI/AIPG Geoscience & Public Policy Intern Brett Beaulieu is reprinted from the November 2003 issue of The Professional Geologist, a publication of the American Institute of Professional Geologists . It is reprinted with permission.

Water does not like to stay still, which presents a problem when trying to regulate it. Water flows and mixes or evaporates and is by nature hard to control. Using words like “adjacent” or “isolated” to describe its relative location cannot capture this dynamic quality. Suggesting that water drains only through “tributaries” ignores its presence across entire drainage basins. Land that receives precipitation is covered by at least a trickle of surface water some of the time. And when ground water is considered, there are few truly isolated water bodies anywhere.

The hydrological interconnectedness of U.S. surface water is currently at the heart of a struggle over the reach of federal authority to enforce the Federal Water Pollution Control Act Amendments of 1972, known as the Clean Water Act (CWA). In classic form, it pits development, industry, and property rights against environmental groups and the obvious popularity of clean water. Over the last three years, the stakes have broadened in magnitude from isolated wetland preservation to water quality and pollution controls that affect the entire country’s waters. While interests have largely driven the events of this drama so far, agency commitment to policy based on science, and courts willing to wade into the hydrological issues provide reasons to be optimistic about an informed outcome.

Court Decision Generates Confusion and Controversy

The controversy developed out of a tiny shadow of uncertainty cast by the U.S. Supreme Court on the reach of the CWA. The January 9, 2001, decision in the case of Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers (USACE) found that the Corps had exceeded its authority under section 404 of the CWA to control permitting for the creation of a landfill out of wetland ponds in Illinois. Because the ponds were contained in one state and not used for navigation, and thereby isolated from other water bodies regulated by the CWA, the USACE based its authority on preamble language commonly referred to as the migratory bird rule. The presence of a large rookery of great blue herons and birds dependent on the aquatic habitat, the Corps argued, qualified the site as “waters of the United States” under the Commerce Clause, because economic interests related to bird watching and hunting depended on preserving the ponds. (Since Congress is not expressly granted the power to legislate environmental protection, the Article I, Section 8 clause of the Constitution limiting Congressional power to matters of interstate commerce has been the basis for most environmental legislation). In a 5-4 split, the high court ruled that migratory birds could not be used to establish federal authority over isolated wetlands or water bodies.

The language of the decision left enough room for interpretation to confuse agencies, states, and stakeholders. A 2002 Congressional Research Service analysis found that the majority opinion could be interpreted narrowly, as merely a rejection of the migratory bird rule, or more broadly, against all federal jurisdiction over waters not connected to interstate waters. Regional USACE officials applied different interpretations and were accused of inconsistencies by those looking to develop isolated wetlands. States, concerned that their wetlands were newly vulnerable, were unsure how to proceed with policies to protect them. Environmentalists, developers, state wetland managers, and eventually the U.S. Congress, began to call for guidance from the Environmental Protection Agency (EPA) and the USACE. Environmentalists favored the view that only the migratory bird rule was struck down, while developers sought a broader reading that would shrink the CWA.

Legislative and Executive Moves to Fill the Void

Concerned that a broad interpretation would remove federal protection from up to 60% of the nation’s wetlands and saddle states with a financial burden, Democrats introduced legislation (H.R. 5194 and S. 2780) in July 2002, that would re-extend protection to all the “waters of the United States” by removing the word “navigable” from the CWA. The foundation for this approach was the contention that Congress had originally intended the CWA to protect all waters of the United States, regardless of their navigability or use for interstate commerce. No states had passed laws protecting isolated wetlands prior to the SWANCC decision, and only two had since. According to S. 2780 sponsor Sen. Russ Feingold (D-WI): “Congress needs to reestablish the common understanding of the Clean Water Act’s jurisdiction to protect all waters of the U.S. — the understanding that Congress had when it adopted the Act in 1972.” Democrats in both houses, however, were unable to push the bills past their respective committees.

After two years of nationwide bewilderment over CWA jurisdiction, the Administration signaled that it might be receptive to widening the crack in federal protections started by the SWANCC decision. The long-awaited guidelines jointly announced by EPA and USACE in January of this year called for the agencies to back off from isolated waters. The agencies would maintain authority over “traditional” navigable waters, their tributaries, and adjacent wetlands. “Isolated” intrastate and non-navigable waters would not be protected solely based on migratory birds, and field staff needed official approval before asserting jurisdiction over these waters for other reasons. The guidance was criticized for making federal authority over isolated wetlands too passive, and it failed to resolve much confusion because key words such as “tributary”, “isolated”, and “adjacent” were left undefined.

The release of guidelines was largely overshadowed by the administration’s Advance Notice of Proposed Rule Making (ANPRM) to solicit input for potential CWA amendments exempting certain classes of isolated water bodies. Environmental interests charged that the move was intended to remove protections based on the grievances of development interests. The regulated community welcomed the ANPRM in the hopes it would finally resolve key definitions. To their credit,EPA and USACE sought a more scientific definition of “isolated waters” and comments on how much of the protection should be based on interstate commerce. Agency testimony revealed that the rulemaking could result in the exclusion of seasonal streams, isolated ponds, and other small water bodies from CWA protection.

Democrats in Congress responded to what they saw as an administration effort to remove some waters from the CWA by again pointing to the original intent of the law. They introduced another piece of legislation to make CWA language explicitly state which waters are protected, again by removing the word “navigable.” The Clean Water Authority Restoration Act (S. 473 and H.R. 962) would make sure all “waters of the United States” are protected through a comprehensive definition: “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate water 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.” Again, without bipartisan support, the bills did not make it out of committee.

Did SWANCC and the resulting confusion justify a potential overhaul of CWA protections? After all, the linkage between birds and interstate commerce was a stretch, so was striking the rule down really that big of a blow to the Act? The answer depends on the intent of the law. Interested parties including home builders and property rights activists believe the rulemaking is necessary to stop the federal government from applying the CWA to waters outside its jurisdiction. What was the original congressional intent for CWA? In other words, did Congress intend complete jurisdiction but was compelled by the Commerce Clause to root its authority in matters of interstate significance? Testifying before the Senate Environment and Public Works Fisheries, Wildlife, and Water Subcommittee in June, Feingold argued that CWA was adopted in 1972 to address pollution problems because the states alone could not ensure clean water for everyone.

The broad definition of “navigable” waters as “waters of the United States” was repeatedly referred to on the floor of both houses and in the relevant committees. Five years later, a bipartisan Senate vote rejected a “proposal to remove federal protections over a smaller category of wetlands and waters than are included in the Administration’s Advanced Notice of Proposed Rulemaking.” Feingold also pointed out that the U.S. Department of Justice was currently in court defending the broad definition of “waters” as necessary for the goal of the CWA to be met. In this context, Feingold argued, “using administrative action to eliminate a category of waters from Clean Water Act jurisdiction is contrary to the law and the purpose of the Act.”

Adopting Scientifically Defensible Definitions

At the same hearing, EPA voiced its preference for maintaining broad authority based on hydrological and ecological connections between waterways. According to EPA Assistant Administrator for Water Tracey Mehan, “Our inclination would be to follow the ecology and hydrology as far as the law will allow — to look at things on a watershed basis. However, it’s entirely possible that Congress did not intend for us to go that far.” Mehan also revealed that a large majority of the 133,000 public comments and scientific contributions submitted on the issue, including a majority of the 42 state government positions, favored a narrow interpretation of SWANCC that would maintain federal protection for isolated but hydrologically connected waters. The testimony and the public input suggest a resolution to the crucial hydrological issues that the rulemaking was intended to address, such as whether ground water flow establishes a water body as “adjacent” to navigable waters.

The question of how far upstream protection should extend becomes more important when contaminant transport enters the equation. There is only one definition of “water” in the CWA, so any change will affect the jurisdiction of the entire law, from the Section 404 program that regulates dredge and fill operations to the Section 402 program that controls permitting for pollutant discharges. According to testimony by Mehan, the CWA is structured so that it would require an act of Congress to establish different jurisdictions for different provisions of the law. So, if SWANCC frees landowners to fill in ponds or wetlands for development, it would also free industry to dump or spill pollutants into geographically isolated waters. But this kind of isolation would not prevent spills from moving downstream or discharging to ground water and potentially contaminating drinking water supplies. Such a scenario demonstrates the clear need for a definition of “tributary” that incorporates watershed-wide drainage and a definition of “adjacent” that recognizes interaction with ground water.

Recent Court Activity Looks Deeper into Hydrology

Even in the absence of a hydrological definition of tributary, the word implies flow into a larger body. Nevertheless, CWA authority is being challenged in the courts over oil and chemical spills into small tributary bodies. Lawsuits filed in D.C. District Court by the American Petroleum Institute and Marathon Oil charge that EPA’s 2002 changes to their Spill Prevention, Control, and Countermeasure (SPCC) rules overstep the bounds of federal authority in light of the SWANCC decision.The new language defines the waters subject to SPCC rules under the CWA more broadly than strictly “navigable” waters, to include intrastate bodies “the destruction of which would affect interstate or foreign commerce.” The plaintiffs seek to limit the burden on oil facilities of preparing detailed oil spill prevention and response measures in locations not adjacent to navigable waters. According to some estimates, this would remove SPCC protections from up to 80% of U.S. waters. Alternatively, a hydrological definition of “adjacent” or “tributary” could make the entire case seem off base.

Recent court decisions demonstrate judges’ willingness to consider hydrological conditions in legal battles over contested water bodies and wetlands. In a case concerning a Maryland couple who drained a small wetland into a roadside culvert, the Fourth Circuit Court of Appeals ruled in June that ditches and culverts are among the small water bodies that are subject to CWA protection even if located far from large waterways. The ruling notes that, since degraded water quality moves downstream, a hydrological connection to navigable waterways should be the criteria for such decisions. An August ruling by the North Carolina District Court builds on this decision and goes several degrees further into the hydrological variables. The court found that any body of water connected by flow to a navigable body through natural or man-made channels, either continuously or seasonally, is subject to federal jurisdiction. The wetlands in question were connected by seasonal flooding to a nearby sound nearly three miles away. Some predict such precedent could make it more difficult for the Bush Administration to go ahead with its rulemaking. Development activities that relied on the rule-making would risk being in violation of the law in the view of courts.

Competing Interests, One Supporting Science

Using migratory birds to protect isolated waters on the basis of their role in interstate commerce was a multi-step leap of logic that seems absurd outside the context of the Commerce Clause limitations on Congress. In the absence of this rule, however, the United States needs to re-evaluate how it wants to protect its waters. Reaffirming comprehensive, inclusive federal protections would make sure no wetlands or tributaries slipped through the cracks, and ensure that no localized abuses degrade the waters that belong to the rest of us. Revising the Act to exclude isolated waters would increase the freedom of some landowners to modify their land, and lessen the inconvenience and cost of development projects.Whichever way Americans decide serves their interests best, geoscience must have a continuing role in informing the policy.

Brett Beaulieu is a master’s student in environmental geology at Vanderbilt University.

This article is reprinted with permission from The Professional Geologist, published by the American Institute of Professional Geologists. AGI gratefully acknowledges that permission.

Please send any comments or requests for information to the AGI Government Affairs Program.

Posted June 29, 2005

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