Beyond SWANCC: the new federalism and Clean Water Act jurisdiction.

• Author: Craig, Robin Kundis
• Position: Solid Waste Agency of Northern Cook Country v. United States Corps of Engineers

1. INTRODUCTION II. CWA BASICS A. Statutory Elements of CWA Jurisdiction B. Compliance with the CWA: Two Permit Programs III. SWANCC, FEDERALISM AND CWA JURISDICTION A. Constitutional Federalism B. Statutory Federalism 1. Cooperative Federalism and State Participation 2. Navigable Waters and Increased Federal Involvement in Water Quality Regulation C. SWANCC: Federalism as a Principle of Statutory Interpretation 1. The SWANCC Decision 2. The Meaning of "Navigable Waters" in SWANCC IV. CWA JURISDICTIONAL ISSUES AFTER SWANCC. A. What Part of the Corps' Regulations Did SWANCC Invalidate? B. What Kind of Hydrological Connection Makes an Intrastate Water an "Adjacent" Water so that Federal CWA Jurisdiction Attaches? 1. The Emerging Majority Rule 2. Minority Rule #1 3. Minority Rule #2 C. Does SWANCC Affect EPA's CWA Jurisdiction as well as the Corps'? D. Will State Regulation Fill in the Gaps SWANCC Left? V. COLLATERAL EFFECTS OF SWANCC A. Oil Pollution Act Jurisdiction B. Fifth Amendment Takings Cases C. Endangered Species Act Regulation VI. WATERS AND ACTIVITIES THAT MAY INSPIRE POST-SWANCC FEDERALISM ISSUES A. Underground Waters B. Dams C. Coastal and Ocean Waters VII. CONCLUSION I. INTRODUCTION

   On January 9, 2001, the Supreme Court decided Solid Waste Agency of Northern Cook Country v. United States Corps of Engineers (SWANCC), (1) restricting the federal government's permitting authority over "navigable waters" and thus readjusting the federal-state balance under the Clean Water Act (2) from its pre-SWANCC presumed Commerce Clause limits. In the process, the Court made several statements indicating that federalism concerns were relevant in interpreting the scope of the federal government's jurisdiction under the Act. Lower federal courts have since strived to resolve the ambiguities regarding the federal role in water quality jurisdiction left by the SWANCC Court, but few have addressed the larger issues of statutory federalism raised by the Supreme Court. However, three specific areas of Clean Water Act jurisdiction--underground waters, dams, and ocean and coastal waters--are likely to test the federalism implications of SWANCC, leading to a different balancing of federal and state interests in each area and hence different decisions regarding federal Clean Water Act jurisdiction in those areas.

   This Article explores the aftermath of SWANCC and its implications for CWA jurisdiction. Part II lays out the basic regulatory structure of the CWA. Part III discusses the principles of constitutional federalism, federalism-related provisions of the CWA, and SWANCC. Parts IV and V discuss the aftermath of SWANCC--specifically, Part IV focuses on the lower courts' direct applications of SWANCC to CWA issues, and Part V addresses the collateral effects of SWANCC for other federal statutes and for Fifth Amendment takings claims. Part VI examines three looming issues of CWA jurisdiction--underground waters, dams, and ocean water quality--and explores how SWANCC's "new federalism" might influence future decisions regarding these issues. This Article concludes that, for the most part, post-SWANCC federal courts have been less interested in adopting the SWANCC Court's emphasis on the role of federalism in interpreting the CWA than they have been in limiting SWANCC itself, but that interesting issues of statutory and constitutional federalism remain for the CWA, particularly if Congress expands protections for ocean water quality.

2. CWA BASICS

   1. Statutory Elements of CWA Jurisdiction

      The overall purpose of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (3) To achieve this purpose, the Act imposes a basic prohibition on all who would pollute the nation's waterways: "Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful." (4)

      The true effect of this basic prohibition, however, is a function of the CWA's definitional complexities. The Act defines "discharge of a pollutant" and "discharge of pollutants" as "(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." (5) Because most discharges occur in the navigable waters, the CWA effectively creates a five-part jurisdictional test: Is there (1) an addition (2) of a pollutant (3) to the navigable waters (4) from a point source (5) by a person?

      The CWA and its implementing regulations do not define "addition." Nevertheless, federal circuit courts have held that an addition of pollutants occurs when water containing pollutants reaches a "navigable water" through unnatural means (6) or when the point source is the "but-for" cause of the pollutants reaching the receiving water. (7)

      The CWA defines "pollutant" to be "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." (8) However, by statute, pollutants do not include sewage discharged from vessels, discharges incidental to the normal operation of vessels in the armed forces, or water discharged into wells in connection with oil and gas production. (9)

      The Act defines "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." (10) Point sources, however, do not include agricultural stormwater discharges or return flows from irrigation agriculture. (11)

      Finally, a "person" for purposes of the basic prohibition is "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." (12) Thus, the CWA prohibits almost any entity from putting almost anything through almost any kind of human-made and human-controlled conveyance into the navigable waters, the contiguous zone, or the ocean--a fairly broad assertion of federal jurisdiction even before defining the exact scope of the waters subject to the Act.

      From a federalism perspective, "navigable waters" is the most troublesome term in the CWA. The Act defines "navigable waters" as "the waters of the United States, including the territorial seas." (13) The "territorial seas," for purposes of the Act, are "the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles." (14) Essentially, the CWA's "territorial seas" are the ocean waters that states control pursuant to the federal Submerged Lands Act. (15)

      The Act does not further define "waters of the United States," but both the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), the two agencies that implement the CWA, have defined "waters of the United States" in great detail through regulation. (16) These regulations--in particular, the Migratory Bird Rule (17) and provisions regarding intrastate waters--are the primary source of most of the recent controversy regarding the scope of federal jurisdiction. (18) Prior to SWANCC, both EPA and the Corps asserted Clean Water Act jurisdiction over "waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sadflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce...." (19) In addition, in the preamble to its 1986 regulations, the Corps asserted jurisdiction over intrastate waters "[w]hich are or would be used as habitat by birds protected by Migratory Bird Treaties ...; [w]hich are or would be used as habitat by other migratory birds which cross state lines ...; [w]hich are or would be used as habitat for endangered species; or [which are] [u]sed to irrigate crops sold in interstate commerce." (20) These extra-regulatory assertions of jurisdiction are collectively known as the Migratory Bird Rule (21)

   2. Compliance with the CWA: Two Permit Programs

      The CWA's prohibition on discharges of pollutants is not absolute. Two permit provisions provide the most common means of complying with the Act's requirements. The more limited permit program in terms of regulatory scope is the section 404 "dredge and fill" permit program, which the Secretary of the Army administers through the Corps. (22) Specifically, the Secretary "may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites." (23) The discharge of dredged material involves "any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States." (24) "Dredged material" is defined as "material that is excavated or dredged from waters of the United States." (25) The "discharge of fill material," in turn, is "the addition of fill material into waters of the United States," (26) while "fill material" is any material used for the primary purpose of "[r]eplacing any portion of a water of the United States with dry land; or [c]hanging the bottom elevation of any portion of a water of the United States." (27) Therefore, the section 404 permit program generally applies to activities where people actively fill or physically change waters of the United States.

      Permit applications pursuant to section 404 are...