Monday, September 7, 2009

The Future of the Clean Water Act

Passed by Congress in 1972, the Clean Water Act (“CWA”) was designed to fill the perceived void in state and local protection of the nation’s waters. It has had two major amendments, the Clean Water Act of 1977 and the Water Quality Act of 1987 and is primarily enforced through regulatory authority granted to the Environmental Protection Agency (“EPA”) and Army Corp of Engineers (“ACE”). The CWA is somewhat unique in that its implementation is achieved through partnerships with the states; many of which are responsible for, among other examples, development of pollution control standards and total maximum daily load allowances – the levels of pollutants that a given water system can contain but still meet water quality standards. Further, EPA has authorized 46 states to directly issue National Pollution Discharge Elimination System (“NPDES”) permits to discharging facilities within their borders.

The scope of federal legislation and regulation and systematic partnership with the states has created a structure whereby the CWA is the primary and in some instances the only method of protecting water quality and integrity in the United States. The strength of the CWA has been weakened dramatically this decade, in large part because of two Supreme Court decisions that narrow applicability of the Act. These decisions have created uncertainty as to scope of federal jurisdiction and the ability of federal and state agencies to utilize their legal and regulatory tools to protect the nation’s waters.

In Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, 121 S. Ct. 675 (2001), the Supreme Court limited ACE’s authority to regulate discharges into “isolated waters” and dramatically redefined the extent of CWA jurisdiction over “navigable waters.” In denying CWA section 404 jurisdiction over these “isolated waters,” Chief Justice Rehnquist, writing for the majority, suggested that congressional intent as to the scope of federal jurisdiction was unclear and that ACE’s interpretation invoked “the outer limit of Congress’s power” and was not within the text of the CWA.

Rapanos v. United States, 126 S. Ct. 2208 (2006) took another bite out of federal regulation, severely reducing federal jurisdiction over wetlands by limiting the definition of “waters of the United States.” Most troubling, Rapanos provides little in the way of precedent to guide both regulators and the regulated community on the reach of the CWA as applied to wetlands and other smaller bodies of water such as intermittent and ephemeral streams. Five justices denied federal jurisdiction over the Michigan wetland, but only four joined the majority opinion – leading to a 4-4-1 decision with Justice Kennedy and his concurring opinion proposing a “significant nexus” test forming a majority decision.

In the aftermath of these two decisions challenges by the regulated community abound and the federal courts are confused as to how to apply the Rapanos opinion; with a split among the Eleventh, Seventh, and First and Eighth Circuits. These decisions have caused the federal agencies to expend massive resources to address court challenges and to wrestle internally and among each other as to the scope of federal jurisdiction. Countless projects are delayed and by one estimate, more than 40% of facilities (14,800) with current NPDES permits to discharge into small or intermittent streams are arguing that because of the Supreme Court decisions they are no longer subject to limits on their pollution levels. The Department of Justice estimates that in the Eleventh Circuit alone, compliance with Justice Kennedy’s “significant nexus” test would require the federal government to allocate an additional 28,000 employee hours to complete the intense factual and evidentiary analysis required to determine whether there is CWA jurisdiction over projects and facilities.

The massive scope of the CWA and its structure of federal / state partnerships mean that many bodies of water may be left completely unprotected; re-creating the problem that CWA was specifically designed to address. EPA estimates that up to 20 million acres of isolated wetlands are no longer subject to their protection and approximately 60% of stream miles that lead to watersheds may no longer be protected. According to the National Wildlife Federation, these decisions have left surface waters in many western states almost completely unprotected because intermittent streams and related wetlands make up most of their surface water supply. Before Congress, the Arizona Department of Environmental Quality testified that nearly 90% of their water is likely unprotected after these two decisions. In a Texas oil spill case, US v. Chevron, a U.S. District Court ruled that a seasonal creek was not protected by CWA and there was no enforcement jurisdiction to require clean-up even though the creek (and its pollution) flows into larger, navigable waters.

More than just wildlife issues are at stake. Dredging or filling streams, and draining and filling wetlands, can cause or exacerbate flooding downstream with significant public safety and economic implications. According to the non-profit American Rivers a single acre of wetland can store 1 to 1.5 million gallons of flood water and it is estimated that wetlands in the continental United States save over $30 billion in annual flood damage costs. The Sierra Club estimates that no longer protected waters supply drinking water to over 5,000 public water systems, serving over 100 million Americans. Many groups and the EPA recognize that given these recent decisions there may be little that can be done to enforce water quality and integrity provisions of these waters.

The current situation requires Congressional action. Further litigation, although increasing significantly, is unlikely to efficiently or accurately give effect to Congresses original intent. There are two measures currently in Congress. Representative Frank Pallone introduced the Clean Water Protection Act in March 2009 with the primary purpose being the return of some pre-2001 protections with a focus on restricting the incredibly destructive, unsustainable, and polluting practice of mountaintop removal mining. The other and more comprehensive bill is the Clean Water Restoration Act, approved by the Senate Environment and Public Works Committee on June 18, 2009.

The Clean Water Restoration Act (the “Act”) seeks to restore the protections of the CWA to those that existed before 2001. It accomplishes this by clarifying and defining waters of the United States and clearly providing the scope and jurisdiction of the CWA. By detailing CWA jurisdiction, the Act also re-establishes, and provides strong support, for state programs. This is evidenced by the more than 40 states that support the Act. If implemented thoughtfully, the Act can clarify the pre-SWANCC status of water protection. As suggested by the SWANCC case and other litigation matters, there was disagreement and conflict over jurisdiction of the CWA and no one piece of legislation will be a panacea of clarity avoiding all future ambiguity. However, a strong statement of legislative intent and scope can provide the agencies with the necessary legal structure to add more clarity than existed even in 2001. By incorporating the concerns of the regulated community and the federal courts, the agencies can seek to minimize vagueness and uncertainty. The Act presents a real opportunity for federal resources to be spent protecting the nation’s waters instead of litigating about it. This can ultimately benefit all parties involved; should eliminate delay; and should restore water quality, environmental protection, and economic predictability to the management of the country’s water supply.

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