The federal Clean Water Act (CWA) prohibits the discharge of pollutants from any point source into “navigable” waters of the United States without a Section 404 Permit issued by the Army Corps of Engineers (Corps). Once this permit has been issued, the Environmental Protection Agency (USEPA) monitors permit compliance, sharing concurrent jurisdiction with the Corps.
There has been a longstanding jurisdictional problem stemming from the CWA’s definition – and courts’ and agencies’ subsequent interpretations – of the term navigable waters. The easy cases are rivers and streams that are clearly navigable; the more difficult cases lie in how much of the associated wetlands and more isolated waters are also subject to CWA jurisdiction. As you can imagine, the Corps and USEPA view CWA jurisdiction broadly, while the regulated community complains that non-navigable waters are outside the CWA’s ambit. The issue was brought to a head when the Supreme Court’s decision in SWANCC v. U.S. Army Corps of Engineers (pdf) quashed the Corps’ attempt to exercise CWA jurisdiction, by way of the Migratory Bird Act, over a water-filled abandoned sand and gravel pit – a classic example of bad facts making bad law. Further muddying the waters is the Supreme Court’s 2006 plurality decision in Rapanos v. United States (pdf), which announced two conflicting tests to determine CWA wetlands jurisdiction: Justice Scalia’s continuous surface connection” test articulated in the plurality opinion, and Justice Kennedy’s “significant nexus” test set forth in the concurring opinion.
The Rapanos plurality test requires a wetland to have continuous surface connection, or “no clear demarcation between ‘waters and wetlands.'” Under this test a wetland encompasses “only those relatively permanent standing or continuously flowing bodies of water,” placing outside of CWA jurisdiction “channels through which water flows intermittently . . . or [which] provide drainage for rainfall.” Justice Kennedy’s significant nexus test does not rely on a physical barrier, but examines the wetlands’ characteristics on a case-by-case basis to determine whether “the wetlands, either alone or in a combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.'”
Due to arcane principles regarding the interpretation of non-majority and concurring opinions, the First and Eighth U.S. Circuit Courts of Appeals have held that wetlands are subject to CWA jurisdiction if their characteristics satisfy either Justice Scalia’s or Justice Kennedy’s tests, while the Seventh and Eleventh Circuits apply only one test – Justice Kennedy’s. Recently, in United States v. Donovan (pdf), the Third Circuit joined the First and the Eight Circuits in applying both tests, causing a 3-2 split in the Circuits. The obvious problem in all of this is uncertainty: one test could result in CWA jurisdiction when the other would not. Unfortunately, neither the Supreme Court nor Congress has shown any desire to step up and articulate clear guidelines for CWA wetlands jurisdiction. Until then, CWA wetlands jurisdiction is as clear as mud.