Rapanos Blog

Op-Ed re "Clean Water Restoration Act"

Reed Hopper's recent commentary on HR 2421 can be found here at the California Farm Bureau Federation. 

Interesting Article on "Clean Water Restoration Act"

National Review Online has this noteworthy article on CWRA, HR2421.   Definitely worth a read.

Hearing on Clean Water Restoration Act

On April 16, 2008, the House Committee on Transportation and Infrastructure held hearings on Congressman Obertsar's controversial and misnamed "Clean Water Restoration Act of 2007."   A video of the hearing can be found here.  Some of the most interesting testimony came from agency representatives like this statement by J.P Woodley of the Corps:

"We have several serious concerns with H.R. 2421 as drafted. . First, it appears that the consequence of the legislation will be to extend the jurisdiction beyond those waters determined to be not jurisdictional under the SWANCC and Rapanos decisions. This appears to go beyond the original intent of Congress in establishing the jurisdictional reach of the Clean Water Act, which reflected a careful balance between the legitimate and important Federal interest in protecting water quality and the equally important and long-standing interest of States in managing and allocating land and water resources within their boundaries. HR 2421 also goes beyond any interpretations of jurisdiction advanced by the agencies in the 30 years preceding the SWANCC and Rapanos decisions. For example, it is not clear whether the bill would require any link to interstate commerce for a water to be jurisdictional.

A second concern is that the bill could open up a whole new line of litigation regarding the limits of Congress’s legislative power under the constitution, creating additional uncertainty and unpredictability for the environment, the regulated community, and State and Federal agencies. "

Even the Corps refuses to back Oberstar's claims that HR2421 merely "restores" the original intent of Congress in the 1972 Act to regulate ALL waters in the United States and that the agency has applied a consistent jurisdictional standard for more than 30 years.   

Senate Committee Hearing on CWA Amendments

The U.S. Senate Committee on Environment and Public Works will be holding a hearing on Wednesday, April 9, to consider the controversial SB1870.  Like its House counterpart HR2421, this bill would expand the reach of the Clean Water Act to cover all waters in the United States by redfining "navigable waters" to include ALL intrastate and interstate waters.  Rhetoric in support of this bill is running high with proponents claiming the bill is necssary becasuse the U.S. Supreme Court has limited federal jurisdiction to actual navigable waters and adjacent wetlands through its SWANCC and Rapanos decisions.  This is a patently false assertion.  Neither the Corps nor the EPA has given that interpretation to these cases.  And, as we have pointed out in a previous post, the federal agencies continue to assert authority over virtually all waters.

California Wetland Protection Policy

The California State Water Resources Control Board is considering the adoption of a controversial Wetland and Riparian Area Protection Policy purportedly designed to "fill the gaps" in federal wetland protections left by the Supreme Court in its SWANCC (2001) and Rapanos (2006) decisions.  This is a curious development in light of the fact that the EPA and Corps are still regulating virtually every pond, puddle and ditch in the Nation under the Clean Water Act sec. 404(b) provision.

The federal Rapanos Guidelines are so broad as to encompass any wetland anywhere and public comments suggest the State Water Board's policy goes too far. Nevertheless, the State is pressing forward and will consider adopting the proposed policy at its April 15 meeting.   The draft policy and comments can be read here. 

Wetland Mitigation Regulations Issued

On March 31, 2008, the Corps and EPA issued new regulations establishing performance standards for permit-approved wetland mitigation.  Mitigation may take the form of  compensatory mitigation, mitigation banking, and in-lieu fee programs, with a preference for mitigation banking.   Accoridng to the agencies, these regulatins will provide greater flexibility and consistency in imposing mitigation requirements.

PLF Comments on Rapanos Guidance

See the Foundation's comments here demonstrating the Guidnance Document is inconsistent with the Rapanos decision.

The Truth About The Oberstar Bill

We continue to see article after article in the newspapers touting the party line that HR 2421, the so-called Clean Water Restoration Act of  2007, just  gives authority back to  federal regulators that the Supreme  Court took away in  SWANCC (2001)  and Rapanos (2006), and that the bill simply codifies statutorily the existing federal regulations defining Clean Water Act jurisdiction.  But nothing could be further from the truth.

Contrary to the self-serving claims of the bill's sponsors that the Corps and EPA have had a consistent interpretation of the scope of federal Clean Water Act authority for more than 30 years that covers ALL waters in the United States, these agencies have NEVER had a consistent understanding of their jurisdiction.  When the Federal Water Pollution Control Act (later amended by the Clean Water Act) was passed in 1972, the Corps claimed the Act only covered navigable-in-fact waters and certain abutting wetlands.  That didn't change until a court held the agency's interpretation was too narrow and the agency adopted broad regulations in effect today which extended federal jurisdiction to "tributaries"  to  navigable waters and certain "adjacent" wetlands.   But even then, the Corps did not interpret "tributaries" to mean  anywhere water flows or could flow, as it does today, and the agency expressly disclaimed any authority over drainage ditches which it now regulates.  The  notion that the Clean Water Act covers ALL waters in the United States did not come to the fore until after the Supreme Court held in Riverside Bayview (1985) that the Corps could regulate wetlands abutting navigable-in-fact waters under its regulations.  The Corps took that decision as carte blanche and started, incrementally, to extend its authority over more and more intrastate waters.  In 1986, the Corps adopted, without public comment, its Migratory Bird Rule that authorized federal regulation of all waters (including any wetlands) that could be used by passing migratory birds. 

In its 2001 SWANCC decision the Supreme Court castigated the agency for its ever changing jurisdictional interpretations and held the Corps had misinterpreted Riverside Bayview.  According to the court, Riverside Bayview did not authorize the agency to regulate ALL waters in the United States without regard to their connection to navigable-in-fact waters.  The High Court said the language of the Act and the intent of Congress was clear: by its terms, the Act prohibits discharges to "navigable waters" and that term could not mean all nonnavigable waters.  Accordingly, the court ruled the Clean Water Act did not apply to isolated ponds.  But contrary to the Corps' expansive reading of  Riverside Bayview, the Corps interpreted SWANCC narrowly, as merely invalidating the Migratory Bird rule while still asserting jurisdiction over most isolated water bodies including nonnavigable ponds and wetlands.

In 2004, the GAO reported the Corps was unable to apply any consistent interpretation of its Clean Water Act jurisdiction and observed with dismay that any three officials from a Corps district office would give three different jurisdictional interpretations.  It was precisely because no one could say with certainty what the Clean Water Act covered that the Pacific Legal Foundation petitioned the Rapanos case to the Supreme Court.   Although that case created its own conflict as to Clean Water Act jurisdiction, a clear majority determined the Corps was not authorized (statutorily, and presumably constitutionally) to regulate ALL waters in the United States.

The claim that the Corps and EPA have clearly and consistently asserted Clean Water Act jurisdiction over ALL waters in the United States for over 30 years is patently false.  The Oberstar bill, which covers "all interstate and intrastate waters," is not a Clean Water Restoration Act but a Federal Power Extension Act. 

Even the claim that the bill just codifies in statute the existing federal regulations is false.  The existing regulations expressly exclude from federal control those wetlands "adjacent to other wetlands."  But the Oberstar bill allows federal regulation of all wetlands.  Contrary to the text of the existing federal regulations, the bill would federalize ALL waters in the United States and much of the land affecting those waters.

This brings us to another claim, which we often see in the media, which is equally false--that if this bill does not pass, 20% of the nations waters will go "unprotected." What is always left unsaid, and which debunks this claim, is the fact that the States can and do regulate the discharge of pollutants into intrastate waters (including wetlands) without the need for federal authorization or approval.  The notion that the States will allow pell-mell pollution of state waters in the absence of broader federal regulation is nonsense. 

Cert Denials in Rapanos follow-up cases

The U.S. Supreme Court chose not to review the appellate decisions in Gerke and Johnson, leaving in place a conflict between the Circuit Courts.  In Gerke the 7th Circuit determined that federal jurisdiction under the Clean Water Act must be  based on the "significant nexus" test proposed by  Justice  Kennedy in the Rapanos case.   In contrast, the 1st Circuit in Johnson held that jurisdiction  could be established based on either the Scalia test, limiting federal authority to relatively permanent rivers, lakes and streams (and indistinguishable wetlands), OR on the "significant nexus test.  Obviously, the High Court is not yet ready to revisit its split decision in Rapanos even to resolve a conflict in the courts over how to interpret that decision.  Whether the court will change its mind when other circuits have weighed in on the jurisdictional question remains to be seen, but the issue will not go away until the Supreme Court grants review.   

Healdsburg Analysis

The Marten Law Group provides this analysis of the Ninth Circuit's reissuance of its decision in  Northern California River Watch v. City of Healdsburg.