The USA Today did a story on the huge debate taking place over the limits of federal jurisdiction over waterways. The debate ensued in the aftermath of two major Supreme Court cases dealing with federal jurisdiction over wetlands.
Early on the focus after Rapanos and SWANCC was which wetlands would receive federal protection. Now, after a series of federal district court rulings and proposed federal legislation, the debate has grown to be much larger. The States may soon find themselves in the middle scrambling to fill some large holes in federal authority.
(Image: Colin Gregory Palmer/everystockphoto.com)
At issue was the term "navigable waters" which appears repeatedly in the Clean Water Act. Both Rapanos and SWANCC looked at that term as it related federal jurisdiction over wetlands. The Supreme Court ruled that Congress, by using the term "navigable waters", did not intend to use its full powers under the Commerce Clause of the Constitution. Rather, Congress limited exercise of its authority to waters and wetlands that had some significant connection to a "navigable in fact waterway."
Unfortunately the Court could not agree on a clear test for determining which waters are federally protected. Justice Kennedy's broader "significant nexus" test seems to have emerged as the most relevant test. Under the "significant nexus" test, any stream, pond, wetland or other waterway that has a "significant nexus" to a navigable water is federally protected. "Significant nexus" means it has a significant effect on the chemical, physical, and biological integrity of the navigable water.
The grey area are intermittent streams and isolated ponds/wetlands. Litigation has seen a clash between experts arguing over whether there is some significant hydrologic connection to a navigable water.
Now two major cases have expanded the debate from beyond just wetlands. Back in 2006, the 5th Circuit in United States v. Chevron Pipe Line Co. 437 F. Supp. 2d 605, 614 (N.D. Tex. June 28, 2006) drastically limited the federal government's authority to pursue spill and contamination in waterways. Chevron involved a major oil spill of 126,000 gallons. The Company successfully argued there was no federal violation resulting from the spill because contamination only reached intermittent streams that had no flow during the time of the spill or during clean up. The Court put the burden on U.S. EPA to prove contamination actually reached a navigable water.
In March, a Federal Court vacated U.S. EPA's SPCC Rule (API v. Johnson, No. 02-2247, 2008 U.S. Dist. LEXIS 25859 (D.D.C March 31, 2008) because it contained an overly broad definition of navigable water. The Court ruled there was no way U.S. EPA could defend the regulation in light of the recent Supreme Court rulings limiting federal jurisdiction. The result of this ruling may be less facilities will need to prepare spill control plans.
Many are focused on the proposed federal legislation as the viable fix to these gaps in federal authority. The legislation would expand coverage under the Clean Water Act from "navigable waters' to "waters of the United States". As highlighted in the USA Today article, given the controversy over such a large expansion of federal jurisdiction, I don't see legislation passing anytime soon. This means the States, who have broader authority will soon be facing the prospect of filling the gaps in federal authority using state permitting or enforcement authority.