Rapanos Blog

Confusion at EPA and the Corps post-Rapanos

Representative Henry Waxman, Chairman of the House Committee on Oversight and Government Reform, yesterday released several internal agency documents revealing the regulatory confusion over the extent of the agencies' CWA jurisdiction after Rapanos, and the effect that confusion has had on enforcement.  Given the complexity of the Rapanos decision, and the complete failure of the agencies' two sets of supposed "guidance" to implement that decision faithfully, it's not surprising that the happy upshot should be under- rather than overenforcement.

More commentary on the new Rapanos Guidance

From the Katoomba Group's Ecosystem Marketplace.

Troubling Rapanos Commentary from the Academy

Arguing for an expansive Rapanos interpretation in which the anchor to traditional navigable waters is eliminated.

Commentary on Revised Rapanos Guidance

From US News & World Report.  Not surprisingly, a spokesman for Earth Justice is quoted, but no one from the other side is.  Earth Justice criticizes the guidance for not adequately fixing the "broken" Clean Water Act, but it's a little unclear how the agencies can make a legislative fix through issuing a nonbinding interpretation of a judicial opinion.

New Rapanos Guidance

Guidance here, and EPA press release here.

The LA River, continued

Here is a segment entitled "Redefining Rivers" (from the show Living on Earth) discussing the impact of Rapanos on CWA jurisdiction in the arid Southwest.  Perhaps the most interesting part of the piece is the end, where Assistant EPA Administrator Ben Grumbles is asked why EPA took over the Los Angeles and Santa Cruz River (a seasonal river in Arizona) cases from the Corps.   Grumbles states:

We took over these two cases because we feel it's important answer some questions to provide greater certainty for those who are looking to protect rivers and streams and understand the limits of jurisdiction under the Federal law, particularly in a desert or arid environment or a highly urban environment such as the LA River.

More on the LA River Controversy

Several months ago, the Army Corps proposed to redesignate the Los Angeles River as nonnavigable for purposes of the Rivers and Harbors Act and the Clean Water Act.  To prove the Corps wrong, Heather Wylie, a Corps employee, joined others in a kayaking trip down the LA River to establish that it remains navigable-in-fact.  Ms. Wylie has written this op-ed in the LA Times, not only defending her actions, but arguing that the Corps' navigability reassessment will mean significantly less protection for the LA River.

Whatever the merit of Ms. Wylie's contentions regarding the Corps' treatment of her following her kayaking expose, her analysis of the effects of the Corps' reassessment is inaccurate.

First, Rapanos says nothing about navigability---the test for whether a waterbody qualifies as a traditional navigable waterway (for Commerce Clause purposes, and thus for Clean Water Act purposes) has remained essentially unchanged for more than half a century.  See United States Appalachian Elec. Power Co., 311 U.S. 377 (1940).  What Rapanos changed was the test for determining whether a nonnavigable waterbody is sufficiently connected to a navigable waterway to allow for regulation of the former.

Second, whether or not part of a waterbody is considered navigable has no direct effect on whether the nonnavigable portions of the waterbody are covered under the CWA.  Under the Rapanos Scalia test, if there is continuous flow and if the waterbody can be classified as a stream or creek (as opposed to a manmade drainage ditch), then it's likely jurisdictional.  Under the Rapanos Kennedy test, if the waterbody substantially affects the physical, chemical, and biological integrity of the navigable waterbody, then it's jurisdictional.  Neither Rapanos test turns on navigability per se.

Thus, Ms. Wylie's objections, and those of her peers, seem to be founded upon a plain misunderstanding of the CWA and Rapanos.

[For a contrary view on the relationship between navigability determinations and the Kennedy significant nexus test, see William W. Sapp et al., The Float a Boat Test:  How to Use It to Advantage in This Post-Rapanos World, 38 Envtl. L. Rep. News & Anal. 10439 (Jul. 2008).]

Cert denied in Lucas

The Supreme Court this week denied cert in Lucas v. United States, a post-Rapanos case from the 5th Circuit.  Still pending before the Court is the cert petition in McWane v. United States, a post-Rapanos case out of the 11th Circuit.  PLF participated as amicus in both cases (see here (Lucas brief) and here (McWane brief) urging the Court to take these opportunities to clarify Rapanos.  The need for clarification could not be greater.  Since the June, 2006, split decision in Rapanos, the circuits have divided dramatically in their Rapanos interpretation: 9th Cir - held Kennedy opinion is controlling; 7th Cir - held Kennedy opinion is controlling; 1st Cir - held either Kennedy opinion or Scalia opinion can be followed; 5th Cir - held wetland jurisdictional if it "neighbors" a tributary; 11th Cir - held Kennedy opinion is controlling.

Solicitor General's Office Asking for Clarification of Rapanos

A post at SCOTUS BLOG leads with the headline: : "U.S. seeks clarity on Rapanos ruling."  This is good news but a change of heart for the government.  Every time PLF has asked the High Court to clarify Rapanos (as with its Johnson and Gerke petitions) the Solicitor General has opposed the request.  Of course, this is the first time a court of appeals has reversed a conviction under the Clean Water Act since the Rapanos decision.  In U.S. v. Robison the 11th Circuit declared that the controlling opinion in Rapanos is the Kennedy "significant nexus" test.  But, the government is asking the Supreme Court to endorse its view that the Corps and EPA can establish Clean Water Act jurisdiction under EITHER the plurality test or the Kennedy test.

This statement in SCOTUS is therefore incorrect:  The new appeal contends that the proper way to read the Rapanos decision is to apply the view “endorsed by eight Members of this Court in Rapanos — the four-Justice plurality and the four dissenters.” 

Although PLF has always maintained that the proper way to read Rapanos is to apply the plurality view, that is not what the government is arguing.  Instead, it is arguing that the Corps and EPA should have it both ways; that they should be able to establish jurisdiction using the plurality test or the Kennedy test, whichever is most convenient to the government.  Let's hope the Supreme Court does its duty and takes the case to offer some badly needed clarification of the Rapanos decision.

You can read the government petition here.

SCOTUS blog commentary on Rapanos

Find it here.