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Thursday, November 21, 2013

The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond

Robert Meltz
Legislative Attorney

Claudia Copeland
Specialist in Resources and Environmental Policy

In 1985 and 2001, the Supreme Court grappled with issues as to the geographic scope of the wetlands permitting program in the federal Clean Water Act (CWA). In 2006, the Supreme Court rendered a third decision, Rapanos v. United States, on appeal from two Sixth Circuit rulings. The Sixth Circuit rulings offered the Court a chance to clarify the reach of CWA jurisdiction over wetlands adjacent only to nonnavigable tributaries of traditional navigable waters—including tributaries such as drainage ditches and canals that may flow intermittently. (Jurisdiction over wetlands adjacent to traditional navigable waters was established in the 1985 decision.)

The Court’s decision provided little clarification, however, splitting 4-1-4. The four-Justice plurality decision, by Justice Scalia, said that the CWA covers only wetlands connected to relatively permanent bodies of water (streams, rivers, lakes) by a continuous surface connection. Justice Kennedy, writing alone, demanded a substantial nexus between the wetland and a traditional navigable water, using an ambiguous ecological test. Justice Stevens, for the four dissenters, would have upheld the existing broad reach of Corps of Engineers/EPA regulations.

Because no rationale commanded the support of a majority of the Justices, lower courts are extracting different rules of decision from Rapanos for resolving future cases. Corps/EPA guidance issued in December 2008 says that a wetland generally is jurisdictional if it satisfies either the plurality or Kennedy tests. In April 2011, the agencies proposed revised guidance intended to clarify whether waters are protected by the CWA, but this proposal was controversial. The ambiguity of the Rapanos decision and questions about the agencies’ guidance have increased pressure on EPA and the Corps to initiate a rulemaking to promulgate new regulations. In September 2013, EPA and the Corps withdrew the controversial proposed guidance and submitted a draft rule to the Office of Management and Budget for review. The substance of the draft rule, and when it might be proposed, are unknown for now. There also has been pressure on Congress to provide legislative clarification. In the 111
th Congress, legislation intended to do so was approved by a Senate committee, but no further legislative action occurred. Similar legislation was not introduced in the 112th Congress or so far in the 113th Congress. Instead, proposals to bar issuance of the Corps/EPA revised guidance and to narrow the regulatory scope of the CWA have been introduced.

The legal and policy questions associated with Rapanos—regarding the outer geographic limit of CWA jurisdiction and the consequences of restricting that scope—have challenged regulators, landowners and developers, and policymakers for 40 years. The answer may determine the reach of CWA regulatory authority not only for the wetlands permitting program but also for other CWA programs, since the CWA uses but one jurisdiction-defining phrase (“navigable waters”) throughout the statute.

While regulators and the regulated community debate the legal dimensions of federal jurisdiction under the CWA, scientists contend that there are no discrete, scientifically supportable boundaries or criteria along the continuum of wetlands to separate them into meaningful ecological or hydrological compartments. Wetland scientists believe that all such waters are critical for protecting the integrity of waters, habitat, and wildlife downstream. Changes in the limits of federal jurisdiction highlight the role of states in protecting waters not addressed by federal law. From the states’ perspective, federal programs provide a baseline for consistent, minimum standards to regulate wetlands and other waters. Most states are either reluctant or unable to take steps to protect non-jurisdictional waters through legislative or administrative action.

Date of Report: November 6, 2013
Number of Pages: 28
Order Number: RL33263
Price: $29.95

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