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Printer friendly versionVolume I, Issue 7 |
September/October 2002 |
“By the authority vested in me by the Constitution and the laws of the United States,[I] do hereby proclaim the year beginning October 18, 2002, as the Year of
Clean Water in commemoration of the 30th Anniversary of the Clean Water Act.”
Proclamation by President George W. Bush, Oct. 18, 2002
(National Archives, Compiled Presidential Documents, Vol. 38, No. 42, p. 1796)As the Clean Water Act (CWA) enters its fourth decade there is much to celebrate. The overall health of our nation’s waters, lakes, rivers, and streams has dramatically improved. The United States has one of the safest and cleanest water supplies in the world. More than 165 million people benefit from modern sewage treatment today, compared to 86 million in 1968. In fact, President Bush’s proclamation heralds the CWA’s wastewater treatment advances as one of the “major achievements in modern American public health.”
Even though the CWA is a relatively mature and successful statute, legal cases raising fundamental questions about the law’s intent, jurisdiction, meaning, and implementation continue to work their way to the highest courts in our nation. These cases are testament to the CWA’s complexity. The law combines vast jurisdiction with lofty goals, and relies on the states in large part, with federal oversight, to accomplish its purposes.
On the 30th Anniversary of the CWA, this issue of Legal Perspectives highlights several important, recent CWA cases. Some cases demonstrate that significant questions about the CWA have been answered. Other cases reveal that many thorny CWA questions still remain. These ongoing legal skirmishes show that at 30 the CWA is still hotly contested, and that this intricate law is likely to challenge environmental practitioners for many more years.
Navigable Waters
The scope of the CWA’s critical jurisdictional term “navigable waters” is a frequent subject of litigation. CWA § 502(7) states in deceptively simple words that “‘navigable waters’ means the waters of the United States . . .” Sixteen years ago, the U.S. Supreme Court held in U.S. v. Riverside Bayview Homes, 474 U.S. 121 (1985), that navigable waters include wetlands abutting navigable waterways. The Court found the term “navigable” to be of “limited effect” given Congress’ intent for the CWA to have sweeping jurisdiction. Riverside Bayview guided Environmental Protection Agency (EPA) and Army Corps of Engineers’ CWA permitting activities for many years.The Supreme Court took a fresh look at the issue last year in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps, 531 U.S. 159 (2001). The SWANCC Court held that nonnavigable, isolated, intrastate waters are not covered by the CWA. Reflecting on Riverside Bayview, the Court noted that “it is one thing to give [the word navigable] limited effect and quite another to give it no effect whatsoever.”
Heralded as dramatically limiting CWA jurisdiction, SWANCC spawned much navigable waters litigation – including 17 federal court cases. Some of these post-SWANCC decisions held that intermittent steams and surface hydrological connections to drainage ditches are excluded from the CWA; while others found that irrigation canals and large, isolated, but still navigable lakes are captured by the statute. With a significant number of cases still ongoing, new rulings on the scope and meaning of navigable waters will continue to shape the CWA’s jurisdictional parameters.
Pollutant Addition
The CWA prohibits the “discharge of a pollutant” without a permit. CWA § 301(a). The discharge of a pollutant is any “addition of any pollutant to navigable waters from any point source.” Id. at § 502(12). This relatively straightforward CWA definition also has led to its share of legal battles.Early cases found that pollutants are not added when water is transferred, such as via a dam. Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982); Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988). These courts held that an added pollutant is one that is introduced from the outside world.
Now, over 10 years later, courts evaluating what it means to add a pollutant are reaching different results. The Second Circuit recently held that a pollutant is added when water is moved from one waterbody to another through a tunnel. Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir. 2001). Defining outside world as anywhere outside the receiving water, the court found that the tunnel requires a National Pollutant Discharge Elimination System (NPDES) permit.
The Eleventh Circuit followed this analysis in Miccosukee Indian Tribe of Florida, et al. v. South Florida Water Management District (SFWMD), 280 F.3d 1364 (11th Cir. 2002). The court held that pollutants are added when water is pumped from a canal through a levee to a water conservation area, requiring an NPDES permit. The SFWMD appealed Miccosukee to the Supreme Court on October 24, 2002. AMSA and other water organizations plan to file an amicus curiae brief urging the Court to review the case, given its dramatic expansion of the types of local water management activities that may require NPDES permits for the first time.
Couple these cases with other recent decisions finding that NPDES permits are required to apply insect control pesticides to wetlands or irrigation canals, and it becomes clear that the scope of the CWA NPDES program, and its interaction with other statutes such as the Federal Insecticide, Fungicide, and Rodenticide Act, are likely subjects for future CWA litigation.
Permit Shield
Yet another fundamental CWA issue recently brought into question is the scope of the CWA’s § 402(k) NPDES permit shield. At least one early case found the shield’s scope ambiguous. Atlantic States Legal Found. v. Eastman Kodak, 12 F.3d 353 (2d. Cir. 1993).Last year the scope of the permit shield reached the Fourth Circuit in Piney Run Preservation Association (Piney Run) v. County Commissioners of Carroll County, Maryland, 268 F.3d 255 (4th Cir. 2001). The court also found CWA § 402(k) to be ambiguous, but then held that an NPDES permit shields a discharger from enforcement for discharging both those pollutants listed in the permit, and those not listed but whose discharge was contemplated by the permitting authority at permit issuance. The Supreme Court declined to review Piney Run in May 2002.
The permit shield’s importance to dischargers will grow as states incorporate new terms and obligations into permits, such as wet weather best management practices. As a result, future permit shield litigation certainly can be anticipated.
Total Maximum Daily Loads (TMDLs)
The provision yielding the greatest volume of recent litigation is CWA § 303(d), the water quality-based program for waterbodies still impaired after technology-based standards are applied. Over the past two decades, 42 states were sued for failing to implement the TMDL program. The suits propelled federal and state regulators to action.More litigation ensued once these TMDL programs began moving forward. The cases raised questions regarding the program’s scope, intent, and the proper roles of EPA and the states. The key Pronsolino v. Nastri decision, 291 F.3d 1123 (9th Cir. 2002) (reh’g denied), confirmed that nonpoint-only impaired waters should be included on CWA § 303(d) lists. At least four other courts evaluated when EPA must step in and establish TMDLs for a state, finding EPA involvement is required only where a state totally fails to act. Other courts held that EPA decisions to approve or disapprove state impaired waters lists are entitled to broad deference, and one found that such EPA decisions trigger Endangered Species Act consultation obligations. Another court recently found that implementation plans are not a required TMDL element. This litigation snapshot reveals that an infinite number of new TMDL questions are likely to spur litigation as state programs mature, as EPA’s regulations change, as more waters are listed or delisted, and as wasteload and load allocations are finalized.
The Future
The CWA, like other major environmental statutes, forged new ground and thus spawned extensive litigation. The coming years will bring new, and possibly even more complex, questions regarding the CWA’s meaning, intent, and its interaction with other statutes to courts across the country. The answers will guide EPA, states, and dischargers in the quest to move ever closer to the CWA’s monumental goal of restoring and maintaining the “chemical, physical, and biological integrity of the Nation’s waters.”© 2002 Association of Metropolitan Sewerage Agencies
Legal Perspectives is a monthly publication of the Association of Metropolitan Sewerage Agencies (AMSA).
Founded in 1970, AMSA represents the interests of over 270 of the nation's POTWs. AMSA members serve the majority of the sewered population in the United States and collectively treat and reclaim over 18 billion gallons of wastewater everyday.
AMSA welcomes comments on Legal Perspectives. Please contact Alexandra Dapolito Dunn, General Counsel, at adunn@amsacleanwater.org or 202/533-1803.