CHAPTER 13 SIX YEARS AFTER RAPANOS--WHAT'S CHANGED? (ANSWER: NOT MUCH)
Jurisdiction | United States |
(Apr 2012)
SIX YEARS AFTER RAPANOS--WHAT'S CHANGED? (ANSWER: NOT MUCH)
Office of Counsel
U.S. Army Corps of Engineers
Philadelphia, Pennsylvania
BARRY GALE is an attorney with the U.S. Army Corps of Engineers, Philadelphia District with responsibility for all Clean Water Act, NEPA and ESA legal issues. Prior to working for the Corps, Barry was an Assistant Attorney General for the Territory of Guam specializing in land use. Barry received his B.A. from Washington University (St. Louis, Mo.) and his J.D. from Villanova University Law School.
I. Introduction
The Clean Water Act2 doesn't regulate water. It regulates what can be discharged into certain water bodies designated by the Clean Water Act ("CWA") as "waters of the United States."3 Therein lies a dilemma. The water molecules of the United States convey and collect themselves with little regard to convenient boundaries and Congressional designations. Nonetheless, since the Clean Water Act's original enactment in 1972, it has been left to the U.S. Army Corps of Engineers ("Corps") and the U.S. Environmental Protection Agency ("EPA") to determine precisely what water bodies were encompassed within the term "waters of the United States".4 Although the regulatory definition of that term promulgated by the Corps has not meaningfully changed since 19775 there has been an unending debate whether all of the water bodies encompassed within the regulatory definition
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accurately reflected Congressional intent. In 2006 the U.S. Supreme Court finally addressed this issue head-on with its decision in Rapanos v. United States.6 It was thought at the time that Rapanos might bring some decisive clarity to this issue. Instead, despite a controlling opinion and a concurring opinion that both expressed fault with the existing regulation, Rapanos has yielded little change to the Corps' Section 404 Regulatory Program. This article will explore why the Rapanos decision has had such little practical impact and what that says about the current state of the Section 404 Regulatory Program.
II. A short history of the term "waters of the United States"
Section 301 of the Clean Water Act prohibits the discharge of pollutants without first obtaining the appropriate Clean Water Act permit.7 If the discharge at issue is dredged or fill material into "navigable waters", the appropriate permit is a Department of the Army permit issued under the authority of Section 404(a) of the CWA.8 The term "navigable waters" is defined as "waters of the United States, including the territorial seas," and there the trail of definitions ends.9 Perhaps the most obvious argument concerning what Congress intended by utilizing the term "waters of the United States" can be found in the simple fact that they chose to define the term "navigable waters" at all. By creating a new term of art they provided a clear signal that they intended to move beyond the well worn traditional definition
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of "navigable waters."10 Of course, how far they intended to move is another matter.11 In any event, on April 4, 1974 the Corps published final revisions to its existing River and Harbor Act permit regulations in order to incorporate its new Section 404 permit program. These 1974 regulations limited the geographic scope of the Section 404 permit program to the same waters that were being regulated under the River and Harbor Act of 1899: waters subject to the ebb and flow of the tide shoreward to their mean high water line and/or waters that are presently used, were used in the past, or are susceptible to use to transport interstate or foreign commerce. In other words, the Clean Water Act's brand new term - "waters of the United States" - resulted in absolutely no change to the Corps' existing geographic jurisdiction that was limited to traditional navigable waters. This state of affairs lasted less than a year. On March 27, 1975, the United States District Court, District of Columbia, in response to a legal challenge of the April 4, 1974 regulation by the Natural Resources Defense Council and the National Wildlife Federation, issued an emphatic two paragraph Opinion: "Congress by defining the term 'navigable waters'...to mean 'the waters of the United States'...asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution. Accordingly, as in the [CWA], the term is not limited to the traditional test of navigability.12 The Court went on to revoke those provisions in the April 3, 1974 regulation that limited the Corps' geographic
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jurisdiction to traditional navigable waters and gave the Corps 30 days to publish new regulations "clearly recognizing the full regulatory mandate of the [CWA];"13 The Government chose not to appeal the District Court decision.14 Despite three subsequent Supreme Court decisions directly addressing the CWA geographic jurisdiction question, the District Court's one page decision in Callaway, 37 years ago, is the only judicial decision that has had any impact on the Corps' regulation that defines the term "waters of the U.S."
After the Callaway decision the Corps proceeded to dramatically expand its CWA geographic jurisdiction beyond what had been set forth in the April 3, 1974 regulation. After issuing an interim final regulation in July, 197515 that started the expansion process, the Corps then issued a Final Regulation16 two years later that included a comprehensive definition of "waters of the United States" that is essentially the same regulation, though restructured and recodified, that exists today at 33 CFR 328.3.17 After the expansion was completed in 1977 "waters of the United States" included essentially any natural or man-made water body that served or in some cases could serve as a collection point for water or the conveyance of water. Thus, in addition to traditional navigable waters, all of the waters within entirely non-navigable tributary systems were encompassed within the definition. Wetlands adjacent to either traditional navigable waters or any element of the non-navigabie
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tributary system were also included,18 as were isolated waters and wetlands to the extent that their "use, degradation, or destruction...could affect interstate or foreign commerce..."19 Almost as important as the water bodies that the Corps was now identifying as being "waters of the United States" were the water bodies that the Corps was indicating were not "generally" waters of the United States. This set of non-jurisdictional water bodies was codified in the preamble of the November 13, 1986 regulation: a) non-tidal drainage and irrigation ditches excavated on dry land; b) artificially irrigated areas which would revert to upland if the irrigation ceased; c) artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; d) artificial reflecting or swimming pools or other ornamental bodies of water created by excavating and/or diking dry land to retain water for primarily aesthetic reasons; e) waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States.20 Significantly, the following statement is included in the preamble immediately preceding this list of non-jurisdictional waterbodies: "...the Corps reserves the right on a case-by-case basis to determine that a particular waterbody within these categories of waters is a water of the
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United States.21 Thus, the Corps was not conceding that any water body was theoretically outside the boundary of being a "water of the United States."
III. "Waters of the United States" goes to the Supreme Court
Eight years after the Corps promulgated its expansive 1977 definition of "waters of the United States" the United States Supreme Court took its first look at the definition in United States v. Riverside Bayview Homes22 Riverside presented the Court with a relatively easy factual circumstance that did not come anywhere near testing the outer limits of the definition. It involved wetlands adjacent to traditional navigable water. The Supreme Court, in a 9-0 decision, upheld the Corps' definition of "waters of the United States" at least to the extent that it covered wetlands adjacent to traditional navigable waters.23 While the Opinion doesn't stray far from the facts, there is nothing in the Opinion that would suggest that the Court would have reached a different decision had the wetlands been adjacent to a non-navigable water.24
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In 2000, the Supreme Court once again reviewed the Corps' definition of "waters of the United States" in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers.25 This time the Court was presented with a factual circumstance that did test the absolute outer boundary of the definition - seasonally ponded and isolated depressions located at the site of an abandoned gravel mining operation that derived its interstate commerce connection from its use as habitat by migratory birds which cross state lines. Here, the Court in a 5-4 decision decided that the site was not subject to CWA jurisdiction (i.e., not a "waters of the United States"). The precise holding of the Court, however, is so limited that it cannot even be read to mean that all isolated waters are beyond the Corps' jurisdictional reach.26 Rather, only those isolated waters supported by a finding that they are utilized by migratory birds are non-jurisdictional. Thus, the...
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