Justice Kennedy and ecosystem services: a functional approach to Clean Water Act jurisdiction after Rapanos.

• Author: Craig, Robin Kundis

1. INTRODUCTION II. ECOSYSTEM SERVICES AND THE PRESERVATION OF AQUATIC ECOSYSTEMS UNDER THE CLEAN WATER ACT A. Ecosystem Services in General B. Ecosystem Services from Aquatic Ecosystems and Wetlands C. The Need for an Ecosystem Services Rhetoric III. CLEAN WATER ACT JURISDICTION, OLD AND NEW A. Statutory Provisions B. Determining Jurisdiction, Old Style: A Formalistic Approach 1. The Classificatory Approach to Clean Water Act Jurisdiction 2. The Occasional Wetland Deviation C. The Supreme Court and a Functional Approach to Clean Water Act Jurisdiction 1. United States v. Riverside Bayview Homes, Inc. 2. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 3. Rapanos v. United States IV. JUSTICE KENNEDY'S RAPANOS TEST AND ECOSYSTEM SERVICES: THE EXAMPLE OF UNITED STATES V. CUNDIFF A. Lower Courts and the Rapanos Split: The Ascendancy of Justice Kennedy's Significant Nexus Test B. The Agencies' 2007 Rapanos Guidance C. United States v. Cundiff D. A Difference that Makes a Difference V. CONCLUSION I. INTRODUCTION

   The Federal Water Pollution Control Act (FWPCA), (1) better known as the Clean Water Act, sets out "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (2) As such, the Act would seem to focus intensely on aquatic ecosystem integrity and function. Nevertheless, implementation of the Act has not emphasized this eco-centric perspective on water quality regulation, particularly when courts consider the question of the federal government's authority to regulate particular discharges into particular waters.

   Indeed, at least as it has been implemented since 1972, the Clean Water Act has been far more concerned about delineating and regulating the uses to which humans put the nation's waters than about preserving ecosystem function per se. As one court has emphasized, "[t]he cornerstone of the CWA regulatory scheme is Section 301, 33 U.S.C. [section] 1311, which prohibits the discharge of pollutants into navigable waters except when in compliance with various provisions of the Act" (3)--not the Act's scattered acknowledgements of aquatic ecosystems and ecosystem function. Moreover, as regulators put the Act's basic prohibition into practice, their implementation has focused primarily on classification--that is, on identifying and regulating qualifying "discharges" into various categories of "navigable waters." (4)

   Nevertheless, Congress's decision to regulate pollutant discharges did acknowledge that aquatic ecosystems' ability to assimilate various kinds of pollutants is limited. By 1972, the year that Congress comprehensively amended the FWPCA to create the contemporary structure of the Clean Water Act, it had become clear that waters can become over-polluted, to the point of catching fire or posing public health threats. (5) In other words, pollution could affect ecosystem function in ways that detrimentally impacted human needs for and uses of waterways. As such, even though one must acknowledge the Act's lack of a fully developed ecosystem approach to water management, it is still fair to discuss the Clean Water Act's regulatory programs in terms of their ability to restore and protect certain aquatic ecosystem services.

   As a term, "ecosystem services" acknowledges that functional ecosystems provide for human needs in ways that have real economic value. (6) Pollutant dilution, assimilation, sequestration, and breakdown are some of the ecosystem services that aquatic ecosystems provide, (7) and Clean Water Act regulation serves in part to ensure that human wastes do not overwhelm aquatic ecosystems' capacity to provide these services. Moreover, the value of these ecosystem services becomes obvious from the costs of technological substitutes: secondary or tertiary treatment for sewage, (8) and effluent control technologies for most other types of waste discharges. (9)

   Nor does the Clean Water Act protect only the ecosystem services associated with pollution assimilation. Overly polluted waters can also interfere with other aquatic ecosystem services. For example, sediment-contaminated (turbid) waters absorb more heat, interfering with those waters' ability to support cold-water fisheries (and human food supplies) such as salmon. (10) Some toxic pollutants, such as mercury and PCBs, can bioaccumulate in the food web, resulting in fish that are too contaminated for humans and other higher-order predators to eat. (11) Unregulated sewage discharges impair the public health benefits of drinking water. (12)

   Regulators can acknowledge ecosystem services at several points during Clean Water Act implementation. For example, states can often capture (implicitly, if not explicitly) the connections between discharges of pollutants and interference with ecosystem services in their water quality standards. Water quality standards consist of the designated uses for particular waters and the water quality criteria necessary to achieve and maintain those uses, (13) and they form the regulatory backstops for discharge regulation under the Clean Water Act. (14) While designated uses need not consider the water's function in the relevant aquatic ecosystem, (15) they nevertheless do routinely (if only implicitly) acknowledge the ecosystem services that particular water segments provide, whether for drinking water, recreation, fish and wildlife propagation, or sewage and other waste assimilation. (16)

   By far, however, it has been the dredging and filling of wetlands pursuant to section 404 of the Act (17) that has produced the clearest articulations of the connections between Clean Water Act regulation and aquatic ecosystem services. In 1985, for example, the United States Supreme Court in United States v. Riverside Bayview Homes, Inc. (18) emphasized both the Clean Water Act's larger ecosystem purposes and the pervasive ecosystem functions and services that wetlands provide. (19) Destruction of wetlands through dredging and filling destroys these ecosystem Services, and the existence of these services, while not always addressed as such, can be relevant to section 404 permit evaluations pursuant to both the United States Environmental Protection Agency's (EPA's) Section 404(b)(1) Guidelines (20) and the United States Army Corps of Engineers' (Army Corps's) public interest review. (21)

   Nevertheless, acknowledgement of ecosystem services in the standards and permitting contexts presupposes that the waters in question fall within the Act's jurisdiction. Ecosystem services have been far less relevant to establishing Clean Water Act jurisdiction in the first place--a paradoxical fact, given the Act's overall aquatic function goals. (22)

   Throughout most of the Act's history, establishing jurisdiction has been approached as a fairly formalistic analysis of four or five (depending on how you count) jurisdictional elements: an addition of a pollutant from a point source to a navigable water by a person. (23) With occasional and generally controversial exceptions in the wetlands context, (24) consideration of what the pollutant is doing to the larger aquatic ecosystem or to ecosystem services has not been a part of the jurisdictional analysis. Thus, establishing Clean Water Act jurisdiction has been a matter of formalized categorization rather than a functional analysis describing the need to regulate the waters in question to protect them from proposed human activities.

   However, in June 2006, a fractured U.S. Supreme Court decided Rapanos v. United States, (25) restricting the scope of the Clean Water Act's "navigable waters." In that 4-1-4 decision, Justice Kennedy articulated a "significant nexus" test that, despite his being the only Justice to sign his concurring opinion, has become either the controlling test or one of two possible tests (depending on the circuit) for identifying "navigable waters" subject to the Act's jurisdiction. (26) Justice Kennedy's test is at heart a functional analysis of jurisdiction, and hence it opens jurisdictional analyses under the Act to consideration of both ecosystem function and ecosystem services arguments for including waters within the Act's protections.

   This Article argues that, if federal courts continue to accept Justice Kennedy's invitation to look at aquatic ecosystem function and aquatic ecosystem services, Rapanos may--contrary to initial appearances--end up producing two salutary effects for Clean Water Act jurisprudence. First, incorporating ecosystem function and ecosystem services into the Act's jurisdictional analysis will likely require agencies and courts to stress the interrelationship and interconnection of water resources, providing stronger arguments for broad Clean Water Act jurisdiction. Second, repeated articulation of ecosystem function and ecosystem services will underscore the vital role that the Act plays in protecting economic as well as ecological values, enhancing the Act's continuing popular and political support.

   Part II of this Article defines and describes the ecosystem services that aquatic ecosystems provide and that the Clean Water Act can protect. Part III describes approaches to establishing Clean Water Act jurisdiction, emphasizing the classic formalistic approach to analyzing Clean Water Act jurisdiction and analyzing the three major Supreme Court opinions on the scope of "navigable waters," with an eye to this traditional approach. In addition, Part III concludes by describing how Justice Kennedy's "significant nexus" test from Rapanos could demand a new approach to the jurisdictional analysis. Part IV describes the ascendancy of Justice Kennedy's test and the Western District of Kentucky's use of a functional jurisdictional analysis in United States v. Cundiff, (27) arguing that Cundiff demonstrates how the difference in analytical approach can both identify ecosystem functions and services that aquatic ecosystems provide and underscore the value of those functions and...