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.
See the Foundation's comments here demonstrating the Guidnance Document is inconsistent with the Rapanos decision.
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.
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.
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.
On July 17, 2007, PLF attorney Reed Hopper testified before the House of Representatives Committee on Transportation and Infrastructure. The hearing was entitled: Status of the Nation's Waters, Including Wetlands, Under the Jurisdiction of the Federal Water Pollution Control Act (As amended by the Clean Water Act). In addition to comments about the Rapanos decision and the new Corps/EPA Guidance, Mr. Hopper also gave an analysis of the proposed Clean Water Restoration Act--H.R. 2421 :
The [proposed Act's] definition of federal authority is not a "restoration" of congressional intent. It far exceeds the jurisdictional scope of the current Clean Water Act as it appears in the text of the statute. It even exceeds the extravagant scope of the existing federal regulations on which this definition is, in part, based. Indeed, with its claim of authority over "all interstate and intrastate waters," this bill pushes the limits of federal power to an extreme not matched by any other law, probably in the history of this country. Neither an ornamental pond nor the proverbial kitchen sink are excluded.
To read the full testimony click here.
On June 5, 2007, the EPA and the Corps issued their much-awaited "guidance" on how the agencies intend to implement the Rapanos decision. Unfortunately for the regulated public, it's same-old same-old. The agencies declare that they will not assert jurisdiction over (1) swales and erosional features, and (2) ditches lying wholely in upland areas. Besides these very minor exceptions, the agencies intend to assert their authority to the fullest, using as broad an interpretation as possible for both the tests set forth in the Rapanos plurality and Justice Kennedy concurring opinions.
The agencies state that they will continue to assert jurisdiction over wetlands "adjacent" to nonnavigable tributaries, as well as those directly abutting navigable waters, without establishing a significant nexus between those wetlands and the waterway. The italicized point is critical, because it reveals the agencies' interpretation of the Rapanos plurality opinion.
The plurality opinion sets forth (at least) two conditions to the assertion of jurisdiction over wetlands (and these apply whether or not the adjacent waterway is navigable). First, the wetland must be hydrologically connected to the waterway. Second, the connection between the wetland and the waterway must be such as to make it impossible to distinguish where the wetland begins and the water ends. The agencies ignore both requirements: they state that a hydrological connection is unnecessary for wetlands abutting a traditional navigable waterway, and that only a "surface water connection" is necessary to establish jurisdiction over wetlands "adjacent" to nonnavigable tributaries.
Although one might plausibly argue that under Justice Kennedy's view, wetlands directly abutting navigable waterways are conclusively presumed to bear the requisite significant nexus, the same cannot be said (at least in the absence of new regulations that make categorical determinations for wetlands adjacent to various types of tributaries) for wetlands adjacent to nonnavigable waterways (such as the ditch at issue in Carabell, the Rapanos companion case). Therefore, because the agencies cannot assert jurisdiction over wetlands "adjacent" to nonnavigable tributaries under the Rapanos plurality without a finding of "indistinguishability" (for lack of a better word), the agencies must establish a significant nexus, on a case-by-case basis. That, however, they disclaim any intent to do.
Thus, the new guidance is really anything but, and the agencies' continued failure to clarify the rules under which the regulated public must operate just underscores the need for the Supreme Court to step into the fray again.
Last Friday PLF filed a petition for writ of certiorari with the U.S. Supreme Court, seeking review of the First Circuit Court of Appeals' recent decision in United States v. Johnson, a Rapanos-type case from Massachusetts.
The case concerns the Johnson family, which has farmed cranberries near Carver, Mass., for the last several decades. Back in the 1990s EPA brought a civil enforcement action against the Johnsons, contending that they had discharged pollutants into navigable waterways without a Section 404 permit. In fact, the only thing the Johnsons did was routine construction and maintenance of their cranberry bogs (e.g. moving sand), which are several miles from the nearest navigable-in-fact waterway. The district court found for the U.S., and concluded that because a hydrological connection existed between the bogs and the river, jurisdiction was present. While that decision was on appeal, the Supreme Court decided Rapanos. The First Circuit therefore remanded the case to the district court, directing the lower court to assess whether jurisdiction over the bogs obtains under either the Rapanos plurality or the Justice Kennedy concurrence test.
In PLF's cert petition, we ask for the Court to resolve the Circuit split already existing between, on the one hand, the First Circuit, and on the other hand, the Seventh and Ninth Circuits, over how to interpret Rapanos. The First Circuit has held that jurisdiction may be proved under either the plurality or the Kennedy concurrence test, whereas the Seventh and Ninth hold that only the Kennedy test is viable. The specter of conflicting legal rules, and the extreme difficulty for the regulated public to operate under an "either/or" legal regime, we believe make the Johnson case cert-worthy.
Another post-Rapanos case from the Seventh Circuit. Mr. Heinrich wished to build a grass road on his forested-wetlands property but did not have a 404 permit. The government brought a civil enforcement action against him; the district court entered a $75,000 civil fine, which the Seventh Circuit affirmed. Mr. Heinrich contended that he did not need a 404 permit because his activity, which the Seventh Circuit noted would have only a minimal environmental impact on the surrounding area, qualified for Nationwide Permit (NWP) 26. Under NWP 26, a landowner need not go through the burdensome 404 permitting process if his project is small enough. The government contested the applicability of NWP 26, and the Seventh Circuit held that, due to some procedural difficulties with the State of Wisconsin's approval of NWP26, that NWP 26 was not available to Mr. Heinrich. Now, Mr. Heinrich has petitioned the Supreme Court, and PLF has filed an amicus brief in support of that petition, arguing that, under the jurisdictional test announced in Rapanos, the Corps does not have regulatory authority over Mr. Heinrich's isolated wetland.
On Monady, Pacific Legal Foundation filed a petition for writ of certiorari in the U.S. Supreme Court in United States v. Gerke. The petition asks the High Court to resolve a conflict in the Circuits on the controlling opinion in Rapanos. In Gerke, the Seventh Circuit Court of Appeals concluded that the Kennedy test was controlling in Rapanos while the First Circuit, in United States v. Johnson, concluded that federal jurisdiction under the Clean Water Act could be established either under the Kennedy test or the plurality test. The question presented for review is:
"May the lower courts prohibit the United States Army Corps of Engineers from relying on the plurality opinion in Rapanos v. United States, 126 S. Ct. 2208 (2006), to determine federal jurisdiction over wetlands under the Clean Water Act."
Read the petition here.
