The EPA has finally presented its definition of “waters of the United States” in a proposed rule published on April 21 (79 FR 22188). For environmental lawyers generally and water law practitioners in particular, it has been highly anticipated. It will provide a common set of definitions for use by EPA and the Army Corps of Engineers in Clean Water Act (CWA) permitting for their §402 NPDES and §404 dredge and fill programs, as well as miscellaneous programs administered by both agencies.
Federal agencies, and particularly the EPA, have claimed an accretive authority over all water since the amendment of the CWA in 1977. For persons who have observed this federal encroachment over the course of 35 years, it is unsurprising that the agencies are now poised to assert federal authority over any moist patch of land in the United States. The enlargement of federal authority over water will be felt most acutely by landowners who seek to alter their land on which some water feature is found. As the Supreme Court has stated, “The burden of federal regulation on those who would deposit fill material in locations denominated “waters of the United States” is not trivial. . . The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.” Rapanos v. United States, 547 U.S. 715, 721 (2006).
Nothing proposed by EPA was unexpected. The agency waited until an advisory panel issued a report last September which provided a fig-leaf for EPA to conclude that its interpretation of “significance” has a scientific foundation. In essence, EPA’s analysis is that water runs downhill, water can be assessed by its chemical, biological and physical parameters, and all water is connected through a hydrologic regime. Because each step of this process can be measured, all water has significance, and hence may be subjected to Congressional authority and jurisdiction under the CWA. In light of this assessment, it should come as little comfort that EPA has announced that it will eschew federal authority over “swimming pools,” “water-filled depressions created incidental to construction activity” and “gullies and rill and non-wetland swales.” 79 FR 22263.
What was unexpected, and is in fact highly interesting, is that EPA chose to include in the proposed rule its legal analysis in support of its rule. It is found at as Appendix B to the proposed rule and comprises nearly ten full pages of text (79 FR 22262-22272). EPA’s legal analysis is nothing short of a recitation of nearly 150 years of Supreme Court jurisprudence over navigable waters that purports to explain the growing Congressional authority over navigable waters under the Commerce Clause of the Constitution (Art. I, Sec. 8, cl. 3 - “The Congress shall have power . . . to regulate commerce with foreign nations, and among the several states.”). Make copies of the Federal Register because we are sure to see this history recited the next time the Supreme Court takes up this topic.
EPA would like us to believe that its judgment about the scope of its authority represents the ineluctable progression of Supreme Court decisions since 1870. Nevertheless, two things are curious about its historical recitation of the jurisprudence. First, EPA spends an inordinate number of pages analyzing its authority over interstate, but non-navigable waters. (I do not claim to understand why, but welcome any thoughts from readers who might be able to explain this to me). After all, the last time the Supreme Court considered whether a federal agency had jurisdiction to require a Federal Power Commission license to build dam on an interstate, but non-navigable, river was 1940. United States v. Appalachian Electric Power Co., 311 U.S. 377.
The question was decisively answered, but authority over the New River at Glyn Lyn, Virginia (the site where the dam was constructed to generate electricity) is light years from asserting federal authority over unnamed ephemeral drainages across Central Appalachia. The federal Commerce Clause authority over the New River was predicated on its status as a channel of commerce. To the extent EPA tries to articulate its Commerce Clause power over ephemeral tributary streams, it is under a theory that any activity in such streams affect traditionally navigable waters.
Second, the real focus of EPA’s analysis is the 2006 decision of the Court in Rapanos. More precisely, EPA focuses on the concurring decision of Justice Kennedy in that case, an opinion which surely has become among the most analyzed concurrences in the history of the Court. Whether he intended to or not, Justice Kennedy has assured himself of a commanding position the next time a CWA case is accepted by the Court. To understand why, a quick recitation of Rapanos is necessary.
The case involved an enforcement action by the Corps regarding whether “four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute “waters of the United States” within the meaning of the Act.” 547 U.S. at 729. A four member plurality of the Court concluded that the wetlands could not be regulated under the CWA. The test proposed by the plurality to confer CWA authority would require the lands in question to have some relatively permanent and continuous surface water connection with traditionally navigable waters which in Rapanos were miles distant. Four members of the Court in dissent determined that under existing criteria then relied upon by the Corps, the wetlands did fall within the jurisdiction of the CWA.
Justice Kennedy joined with the four member plurality to conclude that the case needed to be remanded to the lower court for further fact-finding, but announced a different test for determining when the agencies could assert CWA jurisdiction over a water or wetland feature. He required the finding of a “significant nexus” between the site sought to be regulated and the traditionally navigable water. He found the existing Corps criteria to assert jurisdiction over a tributary - ‘if it feeds into a traditional navigable water (or a tributary thereof) and possesses an ordinary high-water mark, defined as a “line on the shore established by the fluctuations of water and indicated by [certain] physical characteristics” - ‘to be insufficient for the purpose. 547 U.S. at 781. Justice Kennedy explained:
[T]he breadth of this standard—which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes toward it—precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act's scope [.] 547 U.S. at 781-82.
For the first time, EPA has chosen to define “tributary” as part of the proposed rule. It is difficult to conclude that the committee which wrote the Appendix B legal analysis read this part of the Kennedy concurrence as it has effectively adopted the very standard that Kennedy found overbroad. He did not invite EPA to promulgate a rule that was unlimited in scope. Nevertheless, by denying that it will assert jurisdiction over water filled depressions created by construction activities, EPA has claimed that it is trimming its authority. What the agency in fact has done is to take snippets of each opinion – the dissent’s conclusion that the CWA jurisdiction is unlimited, the plurality’s continuous surface water connection test, and Kennedy’s attempt to fashion a significant nexus - to reach a rule that is broader than the one Kennedy criticized in Rapanos.
The Court has sought to avoid having to analyze CWA using a Commerce Clause analysis. Such cases are invariably difficult conceptually, involve controversial issues, and rarely command unanimous decisions. The best current formulation of the ability of Congress to assert a federal authority under the Commerce Clause is United State v. Lopez, 514 U.S. 549 (1995).
First, Congress may regulate the use of the channels of interstate commerce. . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. . . Finally, Congress’s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e activities that substantially affect interstate commerce. 514 U.S. at 558, 559.
Justice Kennedy was part of the majority in Lopez, a case in which he also wrote separately to express his concerns about federal statutes which needlessly intrude in areas which traditionally are understood to be within the province of the states. 514 U.S. at 568-584. Commerce Clause authority over waters has always been analyzed using the first prong of the formulation expressed in Lopez: regulation of the use of channels of interstate commerce. Whether Kennedy will support a federal regulation of all waters based upon a Commerce Clause analysis heretofore not applied to waters (“activities that substantially affect interstate commerce.”) is unclear. He clearly attempted to draw some lines in his Rapanos concurrence, which EPA blows right past in its proposed rule while pretending it is doing otherwise.
The Court has almost begged the executive branch agencies to devise a rule that will recognize recent Supreme Court decisions to avoid such an analysis. As explained by Chief Justice Roberts in a concurring opinion in Rapanos, “Rather than refining its view of its authority in light of our decision in SWANCC [531 U.S. 179, 2001)], and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power.” 547 U.S. 758.
The Chief Justice had no idea how prescient his observation was at the time he wrote his concurrence in 2006. We can only imagine what he will think when the Court reviews EPA’s new rule as it invariably will in the future.