There Is More to the Clean Water Act than Waters of the United States: A Holistic Jurisdictional Approach to the Section 402 and Section 404 Permit Programs.

• Author: Craig, Robin Kundis

ABSTRACT

When Congress enacted the contemporary form of the Federal Water Pollution Control Act in 1972, it used the same statutory formula to trigger both of the act's two permit programs. That decision was never completely comfortable, and over time it has become clear that, although the two permit programs serve the same regulatory goal of improving water quality, they otherwise resonate in two very different complexes of legal values. The U.S. Supreme Court repeatedly has found the section 404 complex particularly troublesome, holding that a broad definition of "waters of the United States" in this program threatens to infringe both states' Tenth Amendment prerogatives and landowners' private property rights. Moreover, this narrowing of jurisdictional "waters of the United States" is likely to continue into the 2022-2023 Supreme Court term through the case of Sackett v. EPA.

The intense legal and political focus on "waters of the United States" since at least the Court's 2006 decision in Rapanos v. United States has obscured the fact that Clean Water Act jurisdiction depends on five elements, not just that one, that must be evaluated together. Moreover, the Supreme Court's approach to section 402 jurisdiction in its 2020 decision in County of Maui v. Hawaii Wildlife Fund counsels the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps or Corps) to take a more holistic approach to their next round of Clean Water Act jurisdictional regulations. This more holistic approach offers two immediate benefits: a highlighting of the many existing exemptions from section 404 and a simplification of jurisdictional analyses. However, in the wake of the anticipated outcome of Sackett v. EPA, the holistic approach can also keep section 402 jurisdiction relatively broad.

CONTENTS INTRODUCTION I. BACKGROUND: FUSING DIFFERENT KINDS OF PERMITS UNDER ONE STATUTORY TRIGGER A. U.S. Waterways: From Open Access Resource to Regulated Commons B. Structuring the Clean Water Act's Permit Programs C. Triggering Clean Water Act Jurisdiction II. THE EARLY CONFLICT OVER THE CLEAN WATER ACT'S SCOPE: THE EPA VERSUS THE ARMY CORPS OF ENGINEERS A. The Army Corps' Initial Reluctance to Move Beyond Traditionally Navigable Waters B. The EPA's Expansion of "Waters of the United States" C. Litigation and Reconciliation III. FROM NPDES TO SECTION 404: THE CONSEQUENCES OF THE SUPREME COURT'S SHIFTED FOCUS A. An Overview of the U.S. Supreme Court's Clean Water Act Decisions B. The Supreme Court's View of the NPDES Permit Program: Protect the Public Commons 1. Early NPDES Decisions Generally Expedite Implementation of Section 402 2. Jurisdictional Limitations Imposed in the Context of Section 402 Arise Only in the Second Half of the Clean Water Act's Existence 3. A Recent Return to Purpose-Based Broadening of Section 402 Jurisdiction C. The Supreme Court's View of "Waters of the United States" Through the Section 404 Permit Program: Protect State Prerogatives and Private Property Rights 1. United States v. Riverside Bayview Homes 2. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC] 3. Rapanos v. United States a. Justice Scalia's Plurality Opinion b. Justice Kennedy's Concurrence and Justice Stevens's Dissent 4. The Rapanos Aftermath 5. Sackett I and Hawkes 6. Sackett II IV. DISTINGUISHING SECTION 402 AND SECTION 404 THROUGH FUNCTIONAL EQUIVALENCE A. The Need for a New Regulatory Approach B. A New Approach to Clean Water Act Jurisdictional Regulations 1. A Holistic Approach Would Emphasize the Many Existing Jurisdictional Limitations to Section 404 2. Holistic Regulations Can Be Simpler CONCLUSION APPENDIX INTRODUCTION

There is a myth growing in the increasingly politicized world of Clean Water Act (CWA or the Act) (1) jurisdiction: getting the definition of "waters of the United States" "right" will solve all the problems regarding the Act's jurisdictional scope. What you perceive those problems to be, in turn, likely depends on whether you are focusing on hydrological interconnectivity and ecosystem function, on the one hand, or on what you can do with your private property, on the other.

No small share of the responsibility for this increasingly entrenched myth belongs to the American Farm Bureau Federation, which since at least the 2015 Obama Administration rulemaking (2) on "waters of the United States" has portrayed that regulatory definition as determinative of whether an activity involving water is subject to the Act. (3) It has been no less reductionist with respect to the Biden Administration's December 2021 proposed definition, (4) which it claims "greatly expands the federal government's regulatory reach over private land use because it allows it to regulate ditches, ephemeral drainages and low spots on farmlands and pastures" and "could impact everyday activities such as plowing, planting and fence-building in or near these areas." (5)

Such statements blatantly ignore the fact that the Act provides fairly blanket exemptions for "normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices," for "construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches," and for the "construction or maintenance of farm roads." (6) More generally, they ignore the fact that Clean Water Act jurisdiction is a multi-element test, of which "waters of the United States" is just one sub-element. (7)

This Article seeks to break the Clean Water Act free of the agencies' and courts' two-decades-and-counting myopic focus on "waters of the United States" by arguing that the EPA and the Army Corps should accept the fact that the Act's two permit programs--the section 402 National Pollutant Discharge Elimination System (NPDES) program (8) and the section 404 "dredge and fill" program (9)--resonate in different legal webs. Specifically, regardless of where a discharge occurs, the NPDES permit program resonates with public nuisance by protecting human health and the public welfare from water pollution, including toxic pollution. In contrast, as the section 404 permit requirement moves away from the larger navigable-in-fact waters to higher ground, it increasingly interferes with private property use, development, and landowner profit, resonating with land use planning limitations and constitutional takings concerns. While the environmental impacts of development in and near smaller waters and wetlands are both real and substantial, (10) the U.S. Supreme Court has made clear that it views section 404 permitting less as preventing nuisance and far more as meddling in the affairs of states, municipalities, and private landowners.11 As a result, no single geography of "waters of the United States" can possibly accomplish the nuisance-preventing functions of section 402 while simultaneously avoiding the interference with land development that the Court has found suspect since 2001. (12)

The Supreme Court's two most recent Clean Water Act cases both underscore the need for a way to escape this dilemma and offer the escape route. In Sackett v. EPA (Sackett II), (13) which the Court is currently deciding, the Court will likely limit the scope of "waters of the United States" yet again in the context of a section 404 permit and problematic analysis from the U.S. Court of Appeals for the Ninth Circuit. (14) However, in its 2020 section 402 decision, County of Maui v. Hawaii Wildlife Fund, (15) the Supreme Court created a "functional equivalence" test specifically to keep section 402 jurisdiction broad enough to accomplish Congress's public purposes for water pollution control. (16) This Article argues that the agencies can use functional equivalence to create a more holistic approach to Clean Water Act jurisdiction to keep section 402 as broad as the County of Maui Court wanted while simultaneously emphasizing to regulated entities, their representatives (like the American Farm Bureau Federation), and the courts the multiple limitations on section 404 jurisdiction that already exist, making clear that "waters of the United States" is not the whole jurisdictional ballgame.

This Article proceeds in four parts. Part I provides a brief history of how Congress fused the Clean Water Act's two permit programs under one statutory trigger, ending with an explication of the Act's five-element jurisdictional test. Part II then recounts the early history of the interagency disagreements between the EPA and the Army Corps regarding the Clean Water Act's scope, culminating in the joint regulatory definition of "waters of the United States" in the 1980s. In Part III, the focus shifts to the U.S. Supreme Court and its progressive interpretations of the Act, specifically comparing the Court's initial focus on section 402 to its more recent focus on section 404. Part IV concludes by suggesting a more holistic approach to new regulations that makes more obvious the many existing limitations on Clean Water Act jurisdiction, undermining the need to so intensely scrutinize and politicize any new definition of "waters of the United States."

1. BACKGROUND: FUSING DIFFERENT KINDS OF PERMITS UNDER ONE STATUTORY TRIGGER

   Congress had been addressing water quality since 1948 through the Federal Water Pollution Control Act (FWPCA), (17) but until 1972 those efforts focused on encouraging states to address water quality, eventually through setting water quality standards, providing federal money for sewage treatment works, and providing federal research, limiting the federal regulatory role to interstate waters and, in 1970, oil spills. (18) In 1969, however, two water pollution disasters spurred Congress to increase the federal government's involvement in water quality regulation: the latest in a century-long...