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NACWA Legal Alert (Leg06-02)

Member Pipeline - Legal - Alert (Leg 06-02)

To:	Members & Affiliates, Legal Affairs Committee
From:	National Office
Date:	February 1, 2006
Subject:	CLEAN WATER ACT CASES BEFORE THE US SUPREME COURT
Reference:	Legal Alert 06-02

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This term, the U.S. Supreme Court will consider three cases concerning the interpretation of the Clean Water Act (CWA): Rapanos v. United States; Carabell v. U.S. Corp. of Engineers; and S.D. Warren v. Maine Board of Environmental Protection. The first two cases concern the scope of the CWA’s jurisdiction over intrastate wetlands. The third case concerns the scope of the term “discharge” for purposes of CWA § 401’s state water quality certification requirements. Briefing for these cases was completed in early January. The Court will hold oral arguments for all three cases on February 21. The Court is expected to issue its decisions before the end of the 2006 term.

Collectively, the Court’s consideration of these cases could result in landmark decisions defining the scope of the CWA’s jurisdiction as it relates to intrastate wetlands and CWA § 401 certification requirements. The Rapanos and Carabell cases (which have been consolidated by the Court for review) could further clarify the “significant nexus” test for defining federal jurisdiction over isolated, intrastate wetlands that was set forth by the Court in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers in 2001. The Court’s ruling may also clarify the CWA’s jurisdiction over non-navigable tributaries to waters of the United States. The S.D. Warren case could clarify whether the “addition of a pollutant” test for defining a “discharge” under CWA § 402 that was set forth by the Court in South Florida Water Management District v. Miccosukee Indian Tribe in 2004 similarly applies to the term “discharge” in CWA § 401, and therefore does not encompass the movement of natural, untreated water within one water body. Because of the potential impacts of the Court’s decisions, these cases have received an unprecedented array of attention from industrial, municipal, governmental, and environmental entities, as well as lawmakers, ecologists, and former U.S. EPA administrators.

This Alert provides: (1) a summary of the issues before the Court and the positions of the parties and amici in these CWA cases, (2) a comparison of the issues presented in these cases to those presented in other recent cases addressing related issues of CWA interpretation in which NACWA has asserted a legal position (South Florida Water Management District v. Miccosukee Indian Tribe; Catskill Mountains Chapter of Trout Unlimited v. City of New York; and City of Healdsburg v. Northern California River Watch), and (3) an assessment of the possible implications that the Court’s decisions in these cases could have on NACWA members.

NACWA wishes to acknowledge David Burchmore and Jill Grinham, of NACWA Legal Affiliate Squire, Sanders & Dempsey, LLP, for their work to prepare the information contained in this Alert. As always, please feel free to contact NACWA General Counsel Alexandra Dunn at 202/533-1803 or adunn@nacwa.org with any questions or comments on the information discussed in this Alert.

SYNOPSIS OF THE CURRENT CASES AND THE POSITIONS ASSERTED BY THE VARIOUS AMICI GROUPS

THE WETLANDS CASES

Rapanos v. United States (Case No. 04-1034)
Carabell v. U.S. Army Corps of Engineers (Case No. 04-1384) (Consolidated)

Question(s) Presented: Does the jurisdiction of the CWA extend to intrastate wetlands that that are hydrologically isolated from, or not adjacent to, navigable waters of the United States? Does the extension of jurisdiction to such wetlands exceed the authority of Congress under the Commerce Clause?

Lower Court Holding: In Rapanos and Carabell, the Sixth Circuit interpreted the SWANCC decision narrowly, and held that the CWA’s jurisdiction extends to non-navigable waters that have a hydrological connection or some other “significant nexus” to traditional navigable waters. In Rapanos, the wetlands in issue are located 11 and 20 miles from the nearest navigable waters, but adjacent and hydrologically connected to non-navigable drainage ditches that eventually run to navigable waters. The Sixth Circuit found that the hydrological connection was sufficient meet the CWA’s jurisdictional “significant nexus” test. In Carabell, the wetlands in issue are hydrologically separated from a non-navigable ditch by manmade berms; the nearby ditch eventually empties into a tributary that empties into a lake approximately one mile away. The Sixth Circuit found that the wetlands are “adjacent wetlands” for purposes of CWA jurisdiction, regardless of whether or not the wetlands are hydrologically connected to traditionally navigable waters. In both cases, the court found that the ditches in issue were “tributaries” to navigable waters.

Positions of the Parties: Rapanos’ and Carabell’s central legal argument is that the mere hydrological connection or adjacency of non-navigable, intrastate waters (including wetlands) navigable waters does not meet the “significant nexus” test set forth in SWANCC and, consequently, such waters are not within the jurisdictional scope of the CWA. The United States and the Corps essentially argue that the Corps has permissibly defined, and asserted jurisdiction over, intrastate “adjacent wetlands” and “tributaries” as “waters of the United States.”

Groups Supporting a Reversal of the Sixth Circuit’s Decision (Limited Federal Jurisdiction over Interstate Waters):^[1]

The Western Coalition of Arid States’ (WESTCAS) amicus brief focuses on the proper scope of “tributaries” of navigable waters for purposes of CWA jurisdiction. WESTCAS argues that the Sixth Circuit, as well as other federal courts and the Corps, have impermissibly used an expansive interpretation of “tributaries” to include dry lands, artificial channels, and municipal storm-sewer systems based on mere hydrological connections to navigable waters. WESTCAS advocates that tributary jurisdiction should be limited to waters “inseparably bound up” with navigable waters (citing SWANCC).

The National Association of Homebuilders (NAHB) filed a brief that similarly focuses primarily on the regulatory status of the drainage ditches in Rapanos and Carabell. The NAHB argues that, because the ditches drained into, or were part of, a municipal storm sewer system permitted under CWA § 402, they were intended by Congress to be regulated as “point sources,” not as “navigable waters.” The NAHB also argues that, in order for wetlands to be federally regulated as “adjacent wetlands,” they must abut “open waters” (rather than “point sources”).” The NAHB’s third argument asserts that the “significant nexus” requirement requires proof of a downstream effect that the wetlands may have on navigable waters and not merely a hydrological connection or adjacency.

An amici group composed of the States of Alaska and Utah, Western Urban Water Coalition, National Water Resources Association of California Water Agencies, Central Arizona Water Conservation District, Metropolitan Water District of Southern California, San Diego County Water Authority, and the California Farm Bureau Association argues that the Corp’s attempt to assert jurisdiction over non-navigable waters based on a mere hydrological connection improperly limits the traditional authority of state and local governments to regulate water use and land use, unlawfully encroaches on the states’ sovereign rights, and potentially impairs the rights of those who rely on state and local laws for their water supplies.

The Foundation for Environmental and Economic Progress, National Association of Realtors, Utility Act Group, and the Chamber of Commerce of the United States of America joined in an amicus brief, arguing that the “significant nexus” test requires an “important and reoccurring relationship” between non-navigable and navigable waters in order for CWA jurisdiction over the non-navigable water to exist. Arguing that a mere hydrological connection is insufficient to satisfy this test, this amici group cites a host examples in which it claims that the Corps has improperly asserted jurisdiction over non-navigable waters (e.g., dry channels, municipal storm sewers, roadside swales, and intermittent streams).

The American Farm Bureau Federation filed an amicus brief arguing that the Sixth Circuit’s (and other courts’) overly broad interpretations of “navigable waters” and “tributaries” has improperly resulted in the regulation under the CWA of a wide range of agricultural and land management activities (e.g., storm water runoff, plowing, pesticide applications) that are not properly regulated under CWA §§ 402 or 404. Similar arguments were made by amici groups composed of CropLife America and several agricultural and ranching trade groups.

The National Stone, Sand and Gravel Association, American Road and Transportations Builders, City of Victorville, CA, and the Nationwide Public Interest Coalition filed an amicus brief arguing that the government’s expansive jurisdictional approach was counter to SWANCC and has created substantial uncertainty for the public works community and has impaired the construction of essential public works (e.g., sedimentation and flood control projects and public infrastructures).

o At least one lawmaker weighed in in favor of a reversal of the Corp’s interpretation of the CWA and the Sixth Circuit’s decisions. John Duncan, Chairman of the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure of the U.S. House of Representatives, filed an amicus brief stating that Corps had extend the boundaries of its jurisdiction under the CWA beyond any limits on such jurisdiction recognized by the Courts.

Groups Supporting the Sixth Circuit’s Decision (Expansive Federal Jurisdiction over Intrastate Waters):^[2]

A group of nine current and former House and Senate lawmakers that were involved with the enactment of the CWA reportedly submitted an amicus brief that states that their original intent in crafting the language of the CWA was to extend jurisdiction to non-navigable tributaries and wetlands such as those in issue in the present cases.^[3]

Four former U.S. EPA administrators (Russell Train, Doug Costle, Bill Reilly, and Carol Browner) submitted an amicus brief, reportedly stating that Rapanos and Carabell do not represent an expansion of federal jurisdiction over intrastate waters, and that CWA jurisdiction has consistently been enforced over such waters for multiple administrations. The former administrators also note that, since the definition of “waters of the United States” that governs wetlands protection also applies to other CWA programs, a ruling that restricts the interpretation of the term will undermine other CWA programs.

The Association of State & Interstate Water Pollution Control Administrators (ASIWPCA) filed its first-ever amicus brief in these cases. ASIWPCA was joined by the attorney generals of at least 28 States. ASIWPCA advocated upholding the Corp’s interpretation of “waters of the United States” on the basis that it is the “jurisdictional lynchpin” under CWA §§ 402 and 303 in addition to CWA § 404. ASIWPCA emphasizes the importance of longstanding “cooperative federalism” over intrastate wetlands and tributaries, citing the potential negative effects of reduced federal jurisdiction. In its brief, ASIWPCA tracked the comments submitted by state and local officials in response to EPA’s post-SWANCC notice of proposed rulemaking of the definition of “waters of the United States.”

An amicus brief was separately filed by at least 34 States, and led by the State of New York. In their brief, the States reportedly argue that many States’ water quality programs are tied to federal definitions and authority, so any changes to the definition of waters at the federal level may compromise the implementation of state wetlands protection programs.

An amicus brief was filed by NACWA member agency the City of New York. The City describes how it relies on wetlands to protect the watershed of its surface drinking water supply system. Accordingly, the City asserts that the CWA provides federal jurisdiction over any wetland with a “significant nexus” to navigable waters.

An amicus brief was also filed by a group of prominent ecologists. The group reportedly focuses their argument on the assertion that the degradation of intrastate wetlands and tributaries can alter surrounding ecosystems and, in turn, effect interstate commerce.

THE CWA § 401 CERTIFICATION CASE
S.D. Warren v. Maine Board of Environmental Protection (Case No. 04-1527)

Question(s) Presented: Does the flow of water over a dam constitute a “discharge” under CWA § 401, therefore requiring a state water quality certification?

Lower Court Holding: In S.D. Warren, the Maine Supreme Court held that the operation of a hydroelectric generating dam that removes water from the river’s natural course, subjects it to private control, and then re-deposits the water into the river constitutes a “discharge” for purposes of the applicability of the CWA § 401(a) state water quality certification requirement.^[4] The Court reasoned that, as the water flows through a hydroelectric project, it becomes subject to the project operator’s private control, temporarily losing its status as “waters of the United States.” When the water rejoins waters of the United States, it constitutes an “addition.” The court held that the word “discharge” in CWA § 502(16) includes, but is not limited to, the “discharge of a pollutant” or “discharge of pollutants.” Rather, the term “discharge” (when used without qualification) is broadly defined under the CWA to encompass the release of water into the waters of the United States, regardless of whether pollutants or more water is added or the release otherwise impacts state water quality standards.

Position of the Parties: S.D. Warren argues that the plain language of the CWA indicates that the term “discharge” in CWA § 401 means an “addition” from a point source; therefore, the CWA § 401 certification requirement is not applicable when water merely passes through a dam and is returned to the same water body (citing Miccosukee). The Maine Board argues that a “discharge” under CWA § 401 occurs when water, wherever it came from and whatever is in it, is discharged -- that is, is emitted or flows -- from the operation of a federally licensed facility into the navigable waters of the United States.

Groups Supporting a Reversal of the Maine Court’s Decision (Limited CWA § 401 Jurisdiction):

The City of Augusta, Georgia (which operates a diversion dam that was recently ordered by FERC to undergo CWA § 401 certification) filed an amicus brief, arguing that a discharge must include an “addition,” whether under Sections 402 or 401, and that Miccosukee compels the conclusion that there is no “addition” in the context of a dam because the waters above and below the dam are not “meaningfully distinct water bodies.” Augusta argues that, if the Court does affirm the Maine decision, it should do so on the narrow ground of the court’s consideration of S.D. Warren’s private control of the water as the decisive favor (as distinguished from Augusta’s passive diversion dam).

The Edison Electric Institute, American Forest & Paper Association, American Public Power Association, National Hydropower Association, and Water Utility Act Group filed an amicus brief which emphasizes that FERC has a sufficient ability to address environmental concerns involved with federal and non-federal dam projects. They contend that the state agencies’ imposition of CWA § 401 requirements on such projects is eroding FERC’s ability to strike the proper balance between energy and environmental values.

The NAHB and Foundation for Environmental Economic Progress filed an amicus brief that primarily argues that the Maine Court’s “private control” test is inconsistent with the CWA and the Court’s precedent. They assert that private v. public control of the water is not determinative of whether there is an “addition” and therefore a “discharge” under either CWA §§ 401 or 402.

The Western Urban Water Coalition (WUWC), which has numerous projects involving water supply and transfer activities, filed an amicus brief to address its members concern that the resolution of this case, through some statutory construction of CWA § 401, might also be applied to CWA § 402 in a manner that disrupts existing law regarding NPDES permitting requirements for water supply and transfer facilities. WUWC emphasizes the distinctions between CWA §§ 401 and 402 (paralleling many of the legal arguments made by the amici in support of the respondents).

Groups Supporting the Maine Court’s Decision (Expansive CWA § 401 Jurisdiction):^[5]

Intervenors American Rivers and Friends of the Presumpscot River argue that the Maine court’s decision does not conflict with Miccosukee because: (1) Miccosukee did not address the scope of what constitutes “any discharge” under CWA § 401; and (2) CWA § 402 (which provides for the permitting of the discharge of pollutants) is fundamentally different from CWA § 401 (which provides for states to ensure that federally licensed projects comply with state water quality standards). The Intervenors also argue that the Maine court’s holding does not conflict with the pre-Miccosukee cases of Consumer Powers, Dubois, or Catskill Mountains because those cases similarly addressed only the applicability of CWA § 402 and not CWA § 401.

A group of over 30 States filed an amicus brief similarly arguing that the term “any discharge” in CWA § 401 is broader than the phrase “discharge of a pollutant” in CWA § 402, and encompasses hydroelectric dam operations. The group also cites the importance of the CWA § 401 certification process in the States’ ability to enforce their water quality standards and to regulate activities that seriously impair the chemical, physical, and biological integrity of waters of the United States.

A group of four former U.S. EPA assistant administrators (J. Charles Fox, G. Tracy Mehan III, and Robert Perciasepe) filed an amicus brief that asserts that, while the CWA’s regulation of discharges of pollutants is not directly in issue in S.D. Warren, if the Court considers the scope of CWA’s authority to regulate discharges of pollutants, it must recognize that the movement and redeposit of dredged spoils within a single water body constitutes the “discharge of a pollutant.”

Numerous other amici groups consisting of over fifty environmental organization (including the National Wildlife Federation, Natural Resource and Defense Council, Waterkeeper Alliance, Riverkeeper, and Trout Unlimited) filed amici briefs, which primarily emphasize the harmful effects of dam activities on state water quality and aquatic ecosystems.

NACWA’S INVOLVEMENT IN RELATED CWA CASES

South Florida Water Management District v. Miccosukee Indian Tribe (Supreme Court 2004):

Question Presented: Whether the pumping of water from a canal to a water management area constitutes the “addition” of pollutants from a point source to navigable waters, therefore constituting the “discharge of pollutants” and requiring a NPDES permit?

NACWA Position: NACWA’s amici group focused primarily on: (1) the negative implications of expanding the scope of NPDES permitting to water transfers and diversions for public water management purposes, (2) the evidence of congressional intent that flow diversion facilities should be treated differently (e.g., CWA § 304(f)(2)(F)), and (3) the existence of more appropriate mechanisms for regulating diversions. The group also argued that the movement of natural, untreated water is not an “addition” constituting the “discharge of pollutants” from a point source and requiring a CWA permit, regardless of whether inter- or intra-basin transfers are involved.

Catskill Mountain Chapter of Trout Unlimited v. City of New York (2d Cir. 2004):

Question Presented: Whether the pumping of water from a canal to a reservoir constitutes the “addition” of pollutants from a point source to navigable waters, therefore constituting the “discharge of pollutants” and requiring a NPDES permit?

NACWA Position: NACWA’s position in this appeal was essentially the same as its position asserted in Miccosukee. The brief additionally asserts that district court’s holding violated the CWA’s savings clause (CWA § 101(g)), which was intended to ensure that the CWA does not interfere with the states’ authority to manage their own water resources.

City of Healdsburg v. Northern California River Watch (9th Cir. 2004):

Question Presented: Whether a wastewater percolation pond and groundwater that are hydrologically connected to navigable surface waters may be considered “tributaries” for the purpose of CWA jurisdiction, therefore requiring an NPDES permit? Whether adjacent wetlands that bear no surface hydrological connection to navigable surface waters are within the jurisdiction of CWA?

NACWA Position: Congress intended to exclude all groundwater from the NPDES permitting requirements, even if hydrologically connected to navigable surface waters; therefore, groundwater cannot be considered a “tributary” of navigable waters. Even if the treatment pond and the underlying groundwater could be characterized as tributaries for CWA purposes, they would fall under the “waste treatment exception” from the definition of “waters of the United States.” NACWA did not address the wetlands issues decided by the lower court.

POTENTIAL IMPLICATIONS OF THE COURT’S DECISIONS IN THESE CASES ON NACWA’S PRIOR LEGAL POSITIONS AND THE INTERESTS OF NACWA MEMBERS

THE WETLANDS CASES (Rapanos and Carabell)

NACWA has not asserted a litigation position regarding the scope of federal jurisdiction over intrastate wetlands. While the California district court in City of Healdsburg held that the intrastate wetlands in issue were “waters of the United States” based on their adjacency to the wastewater treatment pond, NACWA did not address this aspect of the lower court’s holding in its appellate amicus brief. NACWA instead asserted that groundwater (and intrastate ponds connected to navigable waters only by groundwater) cannot be considered jurisdictional “tributaries.” Therefore, should the Court issue a ruling that relates solely to the issue of federal jurisdiction over intrastate wetlands, it would not affect any stated litigation position of NACWA in City of Healdsburg.

While the scope of the CWA’s jurisdiction over “tributaries” of navigable waters is not the precise question accepted for review by the Supreme Court, the question is necessarily raised by the circumstances of the case (both Rapanos and Carabell involve wetlands adjacent to drainage ditches that eventually run to traditionally navigable waters). For the Court to find that the wetlands are within the scope of the CWA’s jurisdiction, it must also find that the non-navigable drainage ditches are jurisdictional “tributaries” for purposes of the CWA. The Supreme Court’s resolution of this issue could influence the Ninth Circuit’s pending appellate decision in City of Healdsburg. If the Court finds that the drainage ditches are not “tributaries” within the CWA’s jurisdiction, the precedent may require the Ninth Circuit to conclude that the groundwater in City of Healdsburg is not a jurisdictional tributary, unless some other “significant nexus” to navigable waters is identified. However, if the Court upholds the exercise of CWA jurisdiction over the drainage ditches, this decision would not necessarily defeat NACWA’s argument that groundwater may not be considered a jurisdictional tributary.

The potential implications of the Court’s decision in these cases on NACWA members may vary depending on the particular regulated activities (or regulatory actions) for which each member is responsible. Members that are detrimentally affected by expansive federal regulation over activities that involve isolated, intrastate wetlands or non-navigable, intrastate waters with only a hydrological connection to navigable surface waters (such as artificial lagoons and storm sewers) would be negatively impacted by a decision by the Court that the federal government may permissible assert jurisdiction over such waters. Other members whose regulatory responsibilities include wetlands protection at a local level or whose regulated activities could be negatively impacted by decreased federal protection of wetlands would be adversely affected by a decision from the Court that restricts federal jurisdiction over intrastate waters.

THE CWA § 401 CERTIFICATION CASE (S.D. Warren)

NACWA has not asserted a litigation position in the prior cases that addresses the scope of term “discharge” in Section 401 (as distinct from Section 402) of the CWA. However, in Miccosukee and Catskill Mountains, NACWA argued that the term “discharge” of pollutants for purposes of CWA § 402 does not include the movement of natural, untreated water because there is no “addition” of any pollutants. Additionally, in Miccosukee and Catskill Mountains, NACWA broadly advocated that water management facilities that transfer or divert water for public water management purposes should be treated differently from other regulated dischargers and should not be unreasonably restricted by federal control under the NPDES program (citing practical implications, CWA § 304(f)(2)(F)’s distinctive treatment of such activities, and the existence of other more appropriate regulatory mechanisms).

Depending on the bases on which the Court reaches its holding, the outcome of S.D. Warren could potentially affect the legal arguments asserted by NACWA in Catskill Mountains, which is still pending before the Second Circuit. Most significantly, if the Court rejects the Maine Court’s private v. public control distinction, or otherwise finds that water management activities are not distinguishable from private activities for purposes of the applicability CWA §§ 401 and/or 402, it could undercut the legal arguments advanced by NACWA in Catskill Mountains. Also, while the scope of CWA § 402 is not in issue in S.D. Warren, the Court may revisit or further clarify its holding in Miccosukee as part of its analysis in a manner that disrupts the currently favorable existing precedent regarding the scope of CWA § 402 as it relates to water supply and transfer facilities.

Even if the Court’s decision does not address or potentially impact the scope of CWA § 402, the Court’s affirmance of the Maine Court’s decision would potentially adversely impact some of NACWA’s members. At least one NACWA member, the City of Augusta, operates a passive diversion dam currently undergoing FERC permitting for which FERC has already ordered Augusta to obtain a CWA § 401 certification. Other NACWA members involved in water transfer activities that require a federal permit may similarly be faced with increased involvement by state regulatory agencies in the federal permitting process.

[1] Other amici in support of the petitioners include: International Council of Shopping Centers, National Multi Housing Counsel, National Association of Industrial and Office Properties, Real Estate Roundtable, Association of General Contractors of America, American Resort Development Association, National Association of Real Estate Investment Trusts, American Petroleum Institute, National Federation of Independent Business League Foundation, Mountain States Legal Foundation, Cato Institute, and Claremont Institute Center for Constitutional Jurisprudence.

[2] Other amici in support of the respondents include: Environmental Law Institute, Chesapeake Bay Foundation, Association of State Wetland Managers, National Mitigation Banking Association, American Planning Association, the Ecological Society of America, and Earthjustice (representing American Rivers, Environmental Defense, National Audubon Society, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, Tip of the Mitt Watershed Council and Waterkeeper Alliance), Ducks Unlimited, the National Wildlife Federation, American Fisheries Society, American Sportfishing Association, Bass Pro Shops, Boone & Crockett Club, Izaak Walton League, Michigan United Conservation Clubs, Orvis, Pheasants Forever, The Wildlife Society, Theodore Roosevelt Conservation Partnership, Trout Unlimited, and Wildlife Management Institute.

[3] The lawmakers include: former Sens. Gary Hart (D-CO), Charles Mathias (R-MD), and Richard Schweiker (R-PA); current Reps. John Dingell (D-MI), John Conveyers (D-MI) and Charles Rangel (D-NY); former Reps. Robert Drinan (D-MA), Pete McCloskey (R-CA), and Kenneth Hechler (D-WV).

[4] CWA § 401(a) requires that any applicant for a Federal license or permit to conduct any activity which may result in “any discharge into navigable waters” shall provide the licensing or permitting agency with a certification from the State in which the discharge originates or will originate that any such discharge will comply with the applicable provisions of CWA §§ 311-317.

[5] Other amici in support of the respondent include: the United States, Friends of the Everglades, James M. Jeffords, and Miccosukee Tribe of the Indians of Florida.