Recent Supreme Court Rulings Weaken the Clean Water Act

Allen Adinoff, MD and the Board of Cutthroat Chapter Trout Unlimited

Hopefully many of you had a chance to read the e-mail from CTU Executive Director, David Nickum from July 2 (Tell EPA & Congress: Protect Our Headwaters!).  http://www.coloradotu.org/2014/06/tell-epa-congress-protect-our-headwaters/ It is very important to all of us who value our streams, waterways, and wetlands to read this article and to contact our State Senators and Congressman, so they can hear how we feel about this issue.  Since the 1970s, the Clean Water Act (CWA) has been one of the best tools for protecting water quality and moving toward the goal of “fishable, swimmable waters”. Unfortunately, CWA protections were weakenedby two recent Supreme Court rulings that rolled back its coverage from isolated wetlands and seasonal and intermittent streams. Waters threatened by these decisions include millions of acres of wetlands and some of the most important trout habitat across the country: headwater streams, amounting to almost 60% of all US streams.  Now, the EPA and Army Corps of Engineers have released a draft rule that reflects this simple common sense approach, clarifies the intent of the original CWA, and would restore protections to these headwater and feeder streams.

The agencies are taking public comment on this proposal until October – but in the meantime, opponents in Congress are proposing amendments that would block the new water quality rules.  An editorial in the Denver Post July 9 by the El Paso County Commissioner makes the preposterous charge that the new rulings would be overbearing, and apply to such bodies of water as “ditches on the side of the road”.   Making your voice heard – both with the agencies, and with our Colorado Congressional delegation is critical so that our vital headwater streams are protected under the Clean Water Act.

The intent of this commentary is to expand on the article from Dave, and provide you with additional information that will allow us all to better understand the issues at hand.  I’ve provided some “bullet points” to summarize the concerns.  I’ve also included more detailed information regarding the CWA and the Supreme Court rulings.

  • The law now known as the CWA was adopted as the Federal Water Pollution Control Act Amendments of 1972. With the passage of this law, Congress made a national commitment to control and eventually eliminate water pollution. The very first sentence of the statute states: “The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  The law was passed with broad bipartisan support of Congress.
  • Congress gave the EPA a broad mandate to protect the “waters of the United States” to achieve the law’s goals. In defining the scope of the 1972 law, Congress used the term “navigable waters,” which it borrowed from older statutes, but then expanded protections beyond the limit of traditional navigable waters. Under the new law, the term “navigable waters” was defined as “waters of the United States.”
  • Since the law’s inception, the EPA and U.S. Army Corps of Engineers have determined that the CWA was intended to protect tributaries that flow into larger waters, such as rivers, lakes, and wetlands adjacent to such tributaries.  Appeals courts have affirmed Congress’ intent to protect these waters.
  • However, in recent years industrial polluters and developers have found allies within the Supreme Court who appear to be sympathetic to their point of view and perspective.  Two recent Supreme Court cases have placed longstanding CWA safeguards in doubt.  At issue is what constitutes “waters of the United States”.
  • The most important of these are Rapanos v. United States and Carabell v. United States Army Corps of Engineers, 2006. Both cases involved developers who wanted to fill and permanently destroy wetlands for a shopping mall and condominium complex, respectively. In both cases, the lower courts said the CWA protected these waters from unregulated pollution and destruction. The plaintiffs advocated eliminating the federal government’s ability to set minimum anti-pollution safeguards for our nation’s streams, tributaries, wetlands, ponds, and other waters that are not big enough to support commercial navigation.
  • On June 19, 2006, the United States Supreme Court issued a deeply divided decision on these two of the most important clean water cases brought before the court since the law was passed now 42 years ago. Justice Scalia wrote a sharply worded decision that would have severely limited the CWA by eliminating key federal protections for many of the nation’s waters. His approach—that the law only protects waters that are “permanent” and “continuously flowing”—would have put at risk almost 60 percent of streams across the country.  Three other Justices—Chief Justice John Roberts, and Justices Thomas and Alito, joined Justice Scalia’s opinion.  Fortunately, there was not a fifth vote for this radical reinterpretation of the law that ignored its plain language and history.  The dissent authored by Justice Stevens criticized Justice Scalia’s opinion as ”rejecting more than 30 years of practice by the Army Corps” and leaving at risk wetlands that “preserve the quality of our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow.”  Justices Souter, Ginsberg, and Breyer joined this opinion.  Justice Kennedy penned the “swing” decision.  While he agreed with Justice Scalia’s decision to remand the cases back to the Sixth Circuit for further proceedings, he completely disagreed with the plurality’s reasoning for doing so.  In fact, Justice Kennedy agreed with the four dissenting justices that the Clean Water Act applies to a broad range of rivers, streams, tributaries, and adjacent wetlands. The Scalia opinion, Kennedy wrote, “would improperly waive protection for rivers, streams and wetlands that Congress intended to protect”.  Instead, Justice Kennedy created a new test for Clean Water Act protections over streams and wetlands – that the EPA and Corps must show that there is a “significant nexus” between these water bodies and the downstream, traditionally navigable waters.
  • Because there was no majority opinion written by the Supreme Court, there was no precedent that binds lower courts, the EPA, or the U.S. Army Corps of Engineers to a particular course of action. The plurality of this decision and the remand to the lower court for review has certainly muddied the original intent of the CWA: that all waters of the United States be protected against harmful, unregulated pollution.
  • This (and other) Supreme Court opinion underscores the need for Congress to step in and reaffirm that the Clean Water Act applies everywhere and in all other waters of the United States.  The intent of the law was clear.  So please take the time to contact your Representatives.

 

Additional Reading

The CWA is one of the nation’s strongest environmental laws, designed to protect the waters of America that provide drinking supplies, recreational activities and wildlife and aquatic habitat for many different species. For more than 40 years, the law has protected  lakes, rivers, streams, wetlands and our country’s waterways from industrial pollution. But in recent years, industrial polluters such as developers and the oil industry have been making a concerted effort to dismantle the protections of the Clean Water Act through litigation and rule challenges that threaten our nation’s water supplies.

On June 19, 2006, the United States Supreme Court issued a deeply divided decision on two of the most important clean water cases brought before the court since the law was passed 42 years ago. This plurality opinion by four conservative justices advocated drastic cutback in the protections of the Clean Water Act. With only one more vote, Justice Scalia, Roberts, Alito and Thomas would have allowed pollution to flow into streams, lakes, wetlands and rivers that supply drinking water to one in every three Americans. Justice Kennedy agreed that the lower court should review the case, but on much narrower grounds than the plurality.

Because there was no majority opinion written by the Supreme Court, there was no precedent that binds lower courts, the EPA, or the U.S. Army Corps of Engineers to a particular course of action. The plurality of this decision and the remand to the lower court for review has certainly muddied the original intent of the CWA: that all waters of the United States be protected against harmful, unregulated pollution. Polluters’ efforts to cut off clean water protections for rivers and creeks throughout the nation by challenging the laws in court and pushing for weaker rulemakings by regulatory agencies like EPA and the Corps of Engineers inches closer to success. This opinion underscores the need for Congress to step in and reaffirm that the Clean Water Act applies everywhere to keep poison out of our drinking water supplies and all other waters of the United States.

Defending the Integrity of the Clean Water Act

The Supreme Court heard arguments in two cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, on February 21, 2006. Both cases involved developers who wanted to fill and permanently destroy wetlands for a shopping mall and condominium complex, respectively. In both cases, the lower courts said the Clean Water Act protected these waters from unregulated pollution and destruction. The polluters advocated eliminating the federal government’s ability to set minimum anti-pollution safeguards for our nation’s streams, tributaries, wetlands, ponds, and other waters that are not big enough to support commercial navigation.

The polluters’ position flies in the face of the plain meaning of the Clean Water Act, its purpose and legislative history, and decades of legal precedent in the Supreme Court and lower courts. Indeed, so extreme are the polluters’ claims that even the Bush administration opposed them. An extraordinary collection of  33 state attorneys general and the District of Columbia, state wetland and floodplain managers, over three dozen environmental advocates and hunting and fishing groups sided with the administration to support continued protections for our nation’s wetlands, streams, tributaries and rivers.

Underscoring what is at risk, the U.S. Environmental Protection Agency  showing that almost 60 percent of all streams in the country could lose federal protections, if, as polluters are asking, the Supreme Court cuts “non-navigable” tributaries and wetlands out of the Clean Water Act.  This includes waters that are the source of public drinking water supplies to 110 million people in the United States.

Questions Before the Court

The Supreme Court heard these two cases on February 21, 2006. In Carabell and Rapanos, the Court was looking at two key questions:

  1. Did Congress intend to protect tributaries of larger waters, and wetlands adjacent to those tributaries?
  2. If so, does Congress have constitutional authority to do so under its power to regulate interstate commerce?

The cases questioned whether the Clean Water Act was intended to protect tributaries that flow into larger waters, such as rivers, lakes, and wetlands adjacent to such tributaries. In both cases, the appeals court affirmed Congress’ intent to protect these waters.

Justice Scalia wrote a sharply worded decision that would have severely limited the Clean Water Act by eliminating key federal protections for many of the nation’s waters. His approach—that the law only protects waters that are “permanent” and “continuously flowing”—would have put at risk almost 60 percent of streams across the country.  Three other Justices—Chief Justice John Roberts, and Justices Thomas and Alito, joined Justice Scalia’s opinion.  Fortunately, there was not a fifth vote for this radical reinterpretation of the law that ignored its plain language and history.

The dissent authored by Justice Stevens criticized Justice Scalia’s opinion as ”[r]ejecting more than 30 years of practice by the Army Corps” and leaving at risk wetlands that “preserve the quality of our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow.”  Justices Souter, Ginsberg, and Breyer joined this opinion.

Justice Kennedy penned the “swing” decision.  While he agreed with Justice Scalia’s decision to remand the cases back to the Sixth Circuit for further proceedings, he completely disagreed with the plurality’s reasoning for doing so.  In fact, Justice Kennedy agreed with the four dissenting justices that the Clean Water Act applies to a broad range of rivers, streams, tributaries, and adjacent wetlands. The Scalia opinion, Kennedy wrote, would improperly waive protection for rivers, streams and wetlands that Congress intended to protect.  Instead, Justice Kennedy created a new test for Clean Water Act protections over streams and wetlands – that the EPA and Corps must show that there is a “significant nexus” between these water bodies and the downstream, traditionally navigable waters.

The two appeals court decisions were overwhelmingly consistent with Clean Water Act case law. In 1985, the Supreme Court ruled unanimously in a similar case, Riverside Bayview Homes v. Army Corps of Engineers, that the act protects wetlands adjacent to waters of the United States. Even after the Supreme Court’s 2001 Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers decision—which ruled that the Clean Water Act does not cover ponds formed by abandoned sand and gravel pits that were only connected to other waters only because they were used by migratory birds—a majority of courts have reaffirmed the act’s broad scope.

Unlike the ponds in SWANCC, which did not share proximity, or demonstrate hydrological or ecological connections (beyond migratory bird use) with other waters, the two cases ruled on by the Supreme Court involved tributaries to larger water bodies (specifically, the Great Lakes), and wetlands adjacent to those tributaries.

The Justice Department, with the support of Earthjustice and the entire environmental community, argued for the court to affirm the Sixth Circuit decisions that the Clean Water Act protects the tributaries and wetlands at issue, consistent with the language of the statute and Congressional intent, and that it is well within Congress’ constitutional power to do so.

The Intent of the Clean Water Act

The law now known as the Clean Water Act was adopted as the Federal Water Pollution Control Act Amendments of 1972. With the passage of this law, Congress made a national commitment to control and eventually eliminate water pollution. The very first sentence of the statute states: “The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

Congress gave the EPA a broad mandate to protect the “waters of the United States” to achieve the law’s goals. In defining the scope of the 1972 law, Congress used the term “navigable waters,” which it borrowed from older statutes, but then expanded protections beyond the limit of traditional navigable waters. Under the new law, the term “navigable waters” was defined as “waters of the United States.”

As the House Public Works Committee stated: “The Committee fully intends the term ‘navigable waters’ be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.” Meanwhile, the Senate Committee on Public Works stated in its report: “Through a narrow interpretation of the definition of interstate waters the implementation of the 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharges of pollutants be controlled at the source.”

The debate in both the House and Senate on the act’s final passage confirmed the conference report’s intent that the law be applied broadly. For example, Rep. John Dingell (D-Mich.), who reported the conference committee bill to the House, explained:

The conference bill defines the term “navigable waters” broadly for water quality purposes. It means all “the waters of the United States” in a geographical sense. It does not mean “navigable waters of the United States” in the technical sense as we sometimes see in some laws. Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the [Army] Corps of Engineers, going to govern matters covered by this bill.

Thus, with overwhelming, bipartisan support, Congress adopted a broad scope for the law to protect “waters of the United States” as necessary to clean up the nation’s waters.

The notion that tributaries of larger waters are beyond the reach of the Clean Water Act is especially absurd. Such tributaries were expressly covered under the 1899 Refuse Act, the predecessor to the 1972 act’s core permit program. It is untenable to assert that Congress, when adopting the 1972 law that the Supreme Court has emphatically described as “comprehensive” and “all-encompassing,” actually intended to cut back on the coverage of the predecessor law from the nineteenth-century.