Clean Water Act Jurisdiction: Where Is It Now?

Steven Miano

The question posed in the title of this article may seem somewhat odd. After all, this year marks the 30th anniversary of the Clean Water Act (CWA). How could we still be asking such a seemingly basic question with respect to a law that has been on the books for so long? Well, as it turns out, some of the most basic issues involved in determining CWA Jurisdiction are in fact the subject of intense debate and complex litigation in cases around the country. This question was also the topic of a panel presented by the Water Quality and Wetlands Committee at the 10th Section Fall Meeting last October in Portland, Oregon.

The panel included three distinguished speakers who are among the most active participants in the ongoing debate and litigation over CWA jurisdiction. The speakers were: Virginia Albrecht of Hunton & Williams in Washington, D.C., who has litigated many CWA cases including Hoffman Homes, and National Mining Association v. Corps of Engineers; Ethan Shankman of the U.S. Department of Justice in Washington, D.C., who argued the SWANCC case in the 7th Circuit; and Mark Hoffer, general counsel of the NYC Department of Environmental Protection, who is litigating Catskill Mountain Chapter of Trout Unlimited v. City of NY. I had the privilege of moderating the panel.

History of Jurisdictional Issues

A close review of the history of federal regulation of water pollution shows that the current controversy surrounding jurisdiction under the CWA has its roots in some of the earliest water litigation under the 1899 Rivers and Harbors Act. (33 U.S.C. § 401, et seq.) This law was the earliest federal law under which the federal government could assert jurisdiction over discharges to surface waters. The purpose of this law was to keep the nation’s waterways open to navigation to promote and to maintain interstate commerce. Despite passage by Congress in 1948 of the Federal Water Pollution Control Act and in 1965 of the Water Quality Act, neither law proved effective in comprehensive water pollution protection. In fact, litigation prior to the 1972 CWA focused pretty intensely on jurisdictional issues, including whether the federal government had jurisdiction over discharges that could not affect navigability of waters. Based on the early focus on navigability, the Army Corps of Engineers would initially only assert jurisdiction over truly navigable waters. This was true well into the mid-1970s (even after passage of the 1972 CWA). However, the focus on navigability declined substantially, certainly by the time Congress passed the 1977 amendments to the CWA, bolstered by some cases broadly interpreting jurisdiction under both the 1972 and 1977 laws. For the past 20 or so years, Commerce Clause issues and questions of actual navigability of waters have not been critical analytical issues in determining federal jurisdiction.

In 1972, Congress passed the CWA, the nation’s first comprehensive federal law aimed at prevention of water pollution. This law established the National Pollutant Discharge Elimination System (NPDES) permit program under Section 402 of the CWA, and established technology-based limits for dischargers, among other things. In 1977, Congress passed additional amendments to the CWA, and included provisions requiring “best available technology” for priority (toxic) pollutants and “best conventional pollutant control technology” for conventional pollutants (BOD, TSS, fecal coliform and pH).

As most environmental practitioners know, the CWA asserts federal jurisdiction over “discharges” into “navigable waters,” which are defined as “waters of the United States” from “point sources.” Likewise, most environmental practitioners who studied environmental law in the mid-1970s to mid-1980s, believed the history discussed above was just that – ancient history. Most understood, until recently, that the scope of jurisdiction under the CWA was vast and, pretty much, without much serious controversy. Both the government and the private sector operated under the presumption that most surface waters were considered “waters of the United States,” even if not navigable-in-fact, and therefore subject to federal jurisdiction. Various definitions promulgated under the CWA by both EPA and the Corps, tended to support the notion of broad jurisdictional authority. Much of the litigation over the last 20 or so years also seemed to confirm this presumption. (See, e.g., Leslie Salt, 896 F.2d 354 (9th Cir. 1990), Hoffman Homes, 999 F.2d 256 (7th Cir. 1993) and Riverside Bayview, 474 U.S. 121, 133 (1985).)

Recent Limits on Jurisdiction

The past 20-year period of relative stability, in terms of CWA jurisdiction, changed radically with the decision issued by the U.S. Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers(SWANCC), 531 U.S. 159, 167 (2001). As many know, a sharply divided Court in SWANCCinvalidated the Migratory Bird Rule, previously adopted to extend jurisdiction to non-navigable, isolated wetlands frequented by migratory birds. In doing so, the Court cut back the Corp’s jurisdiction over wetlands, under Section 404 of the CWA, for the first time. While the Court made it clear that jurisdiction would attach to wetlands adjacent to and “inseparably bound up to” truly navigable waters, it specifically declined to extend jurisdiction to isolated wetlands, and therefore isolated waters.

There has been considerable confusion left by the Supreme Court’s holding in SWANCC. The confusion lies in how broad or narrow the holding should be interpreted. Under a narrow reading, the Corps will only lose jurisdiction when a wetland is completely isolated, non-navigable, intrastate, and the sole basis of jurisdiction is the presence of migratory birds. On the other hand, some read the SWANCCopinion broadly in light of the Court’s discussion of, and its reliance on, the term “navigability.” A broad reading of SWANCC would mean that both the Corps and EPA only have jurisdiction over waters that are either navigable in fact, or have a “substantial nexus” to navigable waters, such as those directly adjacent to navigable waters. A broad reading would require the Corps and EPA to establish more substantial connections to waters to gain jurisdiction over discharges to them.

Section Fall Meeting panelists Virginia Albrecht and Ethan Shankman discussed recent cases by lower courts on how to apply the precedent created by SWANCC. There is little consistency among courts however. For instance, some courts have taken a narrow view of the holding in SWANCC. The court in United States v. Interstate General Co., 2002 WL 1421411 (4th Cir. July 2, 2002) (unpublished), found the Corps’ jurisdiction proper over wetlands adjacent to headwaters of two creeks, comprised of intermittent streams and drainage ditches that averaged two feet in width and depth (held to be navigable, not isolated). The court opined that SWANCCwas limited to an invalidation of the Migratory Bird Rule. However, the court in United States v. Newdunn Associates, Civil No. 2:01cv508 (E.D. Va. July 31, 2001), reached a different conclusion. In response to a motion for a preliminary injunction to stop the filling of wetlands that were connected to a stream by a culvert underneath a highway, the court held that SWANCC has significantly altered the contours of the CWA’s jurisdiction beyond the demise of the Migratory Bird Rule.

This case is on appeal to the 4th Circuit. Likewise, in Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. Apr. 25, 2001), the court held, in the context of a private cost recovery action under the Oil Pollution Act, which uses the CWA term “waters of the United States,” that the plaintiff failed to meet its burden of proof that there was a surface hydrological connection between the creeks and streams in question and the navigable-in-fact Canadian River. The court interpreted a passage from SWANCC to imply that water bodies are regulated under the CWA only if they are “adjacent to an open body of navigable water.” There are in fact many additional cases. Both Ms. Albrecht and Mr. Shenkman prepared excellent papers for the Section Fall Meeting panel and I recommend them to you for further details. Suffice to say, the impact of SWANCC on CWA jurisdiction will be further litigated. Essential questions that will be further litigated include the definition of adjacency, navigability and intermittency (i.e., are intermittent stream connections enough to provide jurisdiction?).

Cases Arguably Expanding Jurisdiction

Contrary to the SWANCCline of cases seemingly narrowing the scope of CWA jurisdiction, there are other lines of cases that may be expanding that scope, at least in terms of certain activities that may require an NPDES permit. For example, in Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. Mar. 12, 2001), the court held, in the context of a CWA § 402 citizen suit, that an NPDES permit was required to apply an aquatic herbicide to shallow irrigation canals. The court concluded that the canals were tributaries to other waters of the United States, and thus themselves were regulated as waters of the United States under the CWA. This case has broad implications for the expansion of permitting requirements to activities that, heretofore, were not regulated.

In Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169 (D. Idaho June 4, 2001), the court held, in the context of a CWA § 402 citizen suit, that discharges from a concentrated animal feeding operation were subject to CWA jurisdiction. The court found that the term “waters of the United States” encompasses a spring that runs into a pond that drains across a pasture into a canal that flows to a creek that is either navigable-in-fact or flows into a navigable-in-fact river. Significantly, it also concluded that discharges into groundwater that leads to surface water may require a § 402 permit where such discharges can be traced from their source to the surface water.

In a much anticipated decision, the U.S. Supreme Court let stand the 9th Circuit’s decision in Borden Ranch, (U.S. 2002), holding that a practice, known as “deep ripping” in wetlands is an activity subject to CWA jurisdiction because it results in discharges causing environmental harm. (A previous case invalidated the Tulloch Rule, which asserted jurisdiction over dredging activities because of “incidental fallback” into waters. The court in National Mining Association(D.C. Cir. 1998), found that the Tulloch Rule violated the CWA.) Unfortunately, the Supreme Court upheld the decision without explanation and thus provided no additional guidance on the issue.

Two other cases, discussed by Mark Hoffer during the Section Fall Meeting panel, have the potential to dramatically increase the scope of permitting activities under the CWA. In the first, Miccosukee Tribe of Indians of Florida v. South Florida Water Management District, 280 F.3d 1364 (11th Cir. 2002), the court held that the South Florida Water Management District needs an NPDES permit to pump water from a canal into a water conservation area. It held that the activity of pumping constituted a discharge from a point source. This case has been appealed to the U.S. Supreme Court. If the 11th Circuit’s opinion stands, literally thousands of similar activities across the country will require NPDES permits.

In the second case, Catskill Mountains Chapter of Trout Unlimited, Inc., et al. v. The City of New York, et al., 273 F.3d 481 (2nd Cir. 2001), the court held that the City of New York needs an NPDES permit to transfer water from one reservoir through a tunnel from a dam and a creek into a separate reservoir. Here the court held that the water was being transferred from one water body into another, through a point source (the dam and tunnel), and the water contained pollutants (in this case turbidity) in excess of that contained in the receiving water body. Therefore, the court held, it was a discharge of pollutants subject to CWA jurisdiction and required an NPDES permit. This case has very broad implications, not only for the City of New York, but for water supply systems across the country. Under the holding of this case, the Erie Canal could require a permit! Unless overturned, it will have particularly costly consequences in western states, which transfer water routinely. The case is currently on remand but bears watching closely as it may well make its way to the Supreme Court. There is an extensive discussion of this case in Mr. Hoffer’s excellent panel materials.

Finally, in a very recent case, decided after the Section Fall Meeting, the 4th Circuit held that the Army Corps had jurisdiction to issue a permit under Section 404 to fill approximately 6.5 miles of streams with overburden from a practice called mountaintop mining (in which the tops of mountains are removed and place into adjacent valleys in order to obtain access to coal deposits). Kentuckians For the Commonwealth v. U.S. Army Corps (4th Cir. 2003). In reversing the lower court’s decision, the 4th Circuit essentially upheld the Corps definition of “fill” to include such mining overburden.

Conclusion

These are extremely dynamic times for those of us whose practices include CWA and water resources cases. Several key jurisdictional cases are making their way through the courts, but ultimately may have to be resolved by the U.S. Supreme Court.