ALI-ABA Course of Study Clean Water Act: Law and Regulation The - PDF document

ALI-ABA Course of Study Clean Water Act: Law and Regulation The Clean Water Act in the Supreme Court: Recent Developments Timothy S. Bishop Mayer, Brown, Rowe & Maw LLP Chicago, Illinois Washington, D.C. October 27-29, 2004

The Clean Water Act in the Supreme Court: Recent Developments By Timothy S. Bishop * , Mayer, Brown, Rowe & Maw LLP The Supreme Court has in recent Terms waded into two jurisdictional issues under Clean Water Act Sections 402 and 404: the scope of the federal government’s “geographic” jurisdiction over water and, with regard to jurisdiction over “activities,” the meaning of the key statutory term “addition.” 1. Developments in Geographic Jurisdiction: “Navigable Waters.” In SWANCC 1 the Court curtailed the Corps’ and EPA’s “geographic” jurisdiction over “navigable waters,” announcing that “isolated” waters are not within the CWA simply because migratory birds land on them and those birds have some connection to interstate commerce through hunting and bird watching. In so holding, the Court, 5-4, adopted the view that the constitutional grounding of the CWA is Congress’s Commerce Clause power over commercial navigation, not the alternative “instrumentalities of commerce” or “substantial connection with commerce” strands of the commerce power. Properly understood, SWANCC means that because CWA jurisdiction rests on Congress’s power over navigation, isolated, intra-state, non-navigable waters may not be regulated by the federal government at all under the statute. In that regard, the Court’s decision in SWANCC is consistent with its renewed insistence, since Lopez and Morrison , that the Commerce Clause has teeth and that the limits of that power are to be rigorously policed by the courts using close analysis of the relevant commerce connection. 2 Since SWANCC many state and local governments have moved to fill the jurisdictional gap over isolated waters, exercising power that Congress intended in the CWA to reserve to the state and local governments best placed to understand the needs of local environments and economies. 3 Not content, however, with the federalist allocation of power ordained by Congress and confirmed by the Court in SWANCC —or with other powers by which the federal government could readily protect isolated waters, such as the * In the interests of full disclosure, the author argued SWANCC , Borden Ranch , and SFWMD for petitioners in the Supreme Court and represented petitioner in Newdunn and GDF Realty , all cases discussed in this article. 1 Solid Waste Agency of Northern Cook County v. United States Army Corps of Eng’rs , 531 U.S. 159 (2001). 2 A certiorari petition currently pending before the Court, GDF Realty Invs. v. Norton , No. 03- 1619, tests the Court’s willingness to extend its reinvigorated Commerce Clause jurisprudence to environmental regulation, there the Endangered Species Act. 3 See 33 U.S.C. § 1251(b) (expressing Congress’s intent to “preserve and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “plan the development and use * * * of land and water resources”).

spending power—the Corps and EPA have taken the litigating position that there is virtually no such thing as an isolated water. Stretching the words of the Supreme Court in SWANCC that only waters “adjacent” to or having a “significant nexus” with navigable waters fall within Sections 402 and 404, 4 the Corps and EPA have asserted broad jurisdiction. According to the Corps’ and EPA’s litigators, whose position has generally been accepted by the lower courts, any physical surface connection at all between non- navigable water and a navigable water—no matter how remote or intermittent or ephemeral—is enough of a nexus to bring that water within the scope of the NPDES and dredge-and-fill permit programs. Landowners and amicus industry groups challenged this strained interpretation of SWANCC and the CWA this year in three certiorari petitions from the Fourth Circuit ( Newdunn , Deaton ) and Sixth Circuit ( Rapanos ). 5 Deciding these cases together, the Supreme Court denied certiorari in all three. Not too much should be read into these denials, however. The agencies and lower courts were for years similarly unanimous in their support of the migratory bird rule, and the Supreme Court denied certiorari to address the propriety of that rule before holding it baseless in SWANCC . 6 The Fifth Circuit, interpreting parallel “navigable waters” language in the Oil Pollution Act in Rice v. Harken Exploration Co. and In re Needham , has disagreed with the expansive view that essentially all water is “adjacent” to navigable water. 7 The Supreme Court is likely to take up this important and contentious issue if the Fifth Circuit or another court of appeals rejects the government’s position in a CWA case, or once the issue has otherwise fully percolated in the lower courts. In the meantime, the government’s aggressive litigating position is not uniformly reflected in jurisdictional determinations in the field. 8 4 531 U.S. at 167-68, 172-74. 5 Treacy v. Newdunn Assocs., LLP , 344 F.3d 407 (4th Cir. 2003), cert. denied, 124 S. Ct. 1874 (2004); United States v. Deaton , 332 F.3d 698 (4th Cir. 2003), cert. denied, 124 S. Ct. 1874 (2004); United States v. Rapanos , 339 F.3d 447 (6th Cir. 2003), cert. denied, 124 S. Ct. 1875 (2004). The Question Presented in Newdunn , for example, was “whether federal Clean Water Act jurisdiction over ‘navigable waters’ extends to wetlands that are not adjacent or contiguous to open waters but from which rainwater runoff may occasionally reach navigable waters located miles away through a series of manmade, indirect, ephemeral, and intermittent surface water connections.” 6 See Cargill, Inc . v. United States , 516 U.S. 955 (1995). 7 Rice v. Harken Exploration Co ., 250 F.3d 264 (5th Cir. 2001); In re Needham , 354 F.3d 340 (5th Cir. 2003). 8 See Petition for Writ of Certiorari at 19-23, Newdunn Assocs., LLP v. United States Army Corps of Eng’rs , No. 03-637 (U.S. filed Oct. 27, 2003); Supplemental Brief for Petitioners at 1- 2, id . (U.S. filed Mar. 8, 2004); Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction , Report to the Chairman, Subcommittee on (cont’d) 2

2. The “Addition” of Pollutants to Navigable Waters. Permits are required under CWA Sections 402 and 404 only for “discharges” of pollutants or dredge-and-fill material, defined as “any addition of any pollutant to navigable waters from any point source.” 9 The Supreme Court has twice taken up the meaning of “addition,” in very different contexts, without yet shedding a great deal of light on the concept. a. Borden Ranch. In Borden Ranch 10 the Corps fined the Ranch $1 million for deep plowing in wetland areas to convert pasture land to vineyards and orchard. By breaking up the clay pan, this deep plowing allowed water to drain from the surface to reach the deep roots of vines and fruit trees. But the plowing did not bring new “pollutants” into the wetland from outside. It only moved soil around within the wetland by cutting and turning the soil over. For the Ninth Circuit majority, that was enough to trigger Section 404: “activities that destroy the ecology of a wetland are not immune from the [CWA] merely because they do not involve the introduction of material brought in from somewhere else.” 11 The Supreme Court agreed to review the Ninth Circuit’s surreal opinion that plowing within a wetland to turn over rich native soil for planting constitutes the addition of a pollutant. Justice Kennedy, however, recused himself from the case. After oral argument, the remaining eight Justices deadlocked 4-4 and therefore affirmed the decision below without issuing an opinion. Having failed to resolve this issue in December 2002, the Court is highly likely to take it up again as soon as a case presents itself in which all nine Justices can participate. Knowing this, and seeing the writing on the wall—Justice Kennedy is unlikely to agree to read the “addition” requirement out of the statute—the Corps appears to be settling potential candidates for Supreme Court review on terms extremely favorable to the landowner. b. South Florida Water Management District. The Court’s second “addition” case involves a state agency’s movement of truly navigable water that already contains pollutants. The transformation of central and (… cont’d) Energy Policy, Natural Resources and Regulatory Affairs of the House Committee on Government Reform, GAO-04-297 (Feb. 27, 2004). 9 33 U.S.C. § 1362(12). 10 Borden Ranch Partnership v. United States Army Corps of Eng’rs , 261 F.3d 810 (9th Cir. 2001), aff’d by an equally divided Court, 537 U.S. 99 (2002). The Borden Ranch case is discussed in more detail in Bishop, Tilley, & Bamzai, Counting the Hands on Borden Ranch, 34 Envtl. L. Rep. 10040 (2004). 11 261 F.3d at 814-15. 3