U.S. Supreme Court Limits Reach of Clean Water Act: Reducing Federal Oversight May Not HAve Major Effect in California
A divided U.S. Supreme Court has limited the scope of the Clean Water Act by removing U.S. Army Corps of Engineers' jurisdiction over isolated waters and seasonal wetlands, such as vernal pools and ephemeral washes. Farmers, developers and property rights advocates hailed the ruling as an important limitation on intrusive federal regulation. Environmentalists decried the ruling as a step backward, although many observers said the decision's impact would not be as great in California because of extensive state environmental laws.
The 5-4 ruling appears to mean that builders, farmers and local governments will no longer need a Corps of Engineers permit under § 404 of the Clean Water Act to fill in most wetlands. Since 1977, the Corps has interpreted the Clean Water Act to include jurisdiction over isolated water – in addition to traditional "navigable waters," such as streams, rivers and lakes. Under its 1987 "Migratory Bird Rule," the Corps clarified that its reach under the Clean Water Act (33 U.S.C. § 1344) extended to any wetland or isolated body of water that provides habitat for migratory birds or endangered species.
But the high court ruled that Congress did not intend for the Corps of Engineers to have jurisdiction over nearly every body of water or wetland, no matter how small or temporary. "Permitting respondents [the Corps of Engineers] to claim federal jurisdiction over ponds and mudflats falling within the ‘Migratory Bird Rule' would result in a significant impingement of the States' traditional and primary power over land and water use," Chief Justice William Rehnquist wrote for the majority.
The court split in what is becoming its typical 5-4 fashion, with Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas voting to reign in federal authority. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined in a sharp dissent that called the majority's reading of the Clean Water Act "miserly."
Robert Falk, co-chair of the Land Use and Environmental Law Group at Morrison & Foerster in San Francisco, said the ruling hits at federal agencies that have strayed far afield.
"It's a message to regulatory agencies that when you make rules and regulations and so forth, you better stick pretty close to what Congress's stated intent was," Falk said.
But Stephan Volker, an Oakland attorney who represents environmentalists, said that Congress clearly wanted isolated waters and wetlands protected.
"The court turned its back on 30 years of precedent in favor of allowing local governments to fill in or otherwise degrade waterways that historically have been under the regulation of the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act," Volker said. "This ruling represents a major setback for wetlands restoration across the country."
States can fill the regulatory void, although state and local governments have been reluctant to do so in the past, which is why Congress passed the Clean Water Act in 1972, Volker said.
California is different from many states, though, because it has extensive environmental regulations, a system of Regional Water Quality Control Boards, and an active Coastal Commission that oversees wetlands near the coast. Plus, most of the vernal pools that dot the central valley and portions of San Diego County are known to contain an endangered species (the fairy shrimp), so regulation by the State Department of Fish & Game and even the federal Fish & Wildlife Service is likely to continue.
"It [the ruling] may mean that the status quo in California does not change a lot," Falk said.
But state law does not contain provisions for "citizen attorney general" lawsuits that seek to enforce regulations when government refuses, Falk noted. The Clean Water Act does allow citizen lawsuits to force compliance with the Act, a right the. Supreme Court itself upheld last year in Friends of the Earth v. Laidlaw, 528 U.S. 167 (see CP&DR Legal Digest, February 2000, December 2000).
The ruling also raises endangered species issues because the Corps of Engineers' review of a § 404 permit application often provides the "federal nexus" that spurs review of potential impacts to protected species, said Brian Plant, of counsel to Sacramento's Remy, Thomas & Moose. Without the Corps "federalizing" a project, some projects' potential effects on endangered species could go unreviewed, said Plant, who called the ruling a "landmark decision." The decision could also mean that developers lose access to "Section 7" permits under the Endangered Species Act and instead have to seek "incidental take" permits under the Act's more cumbersome Section 10, which requires implementation of a habitat conservation plan.
The case at hand involved a proposed landfill in Illinois. A consortium of 23 cities, called the Solid Waste Agency of Northern Cook County, sought to bury municipal waste at a 533-acre former sand and gravel mine on the border of Cook and Kane counties. In 1987, the Corps of Engineers exerted jurisdiction because about 30 acres of ponds on the site (the result of the abandoned mine) qualified as "waters of the United States." The solid waste agency moved through the regulatory process, acquiring permits from local and state agencies. But the Corps refused to issue a § 404(a) permit because the agency did not prove its proposal was the "least environmentally damaging and most practicable alternative," because the agency refused to set aside enough money to remediate leaks, and because the impact to sensitive species was unmitigable.
The solid waste agency sued, challenging both the Corps' jurisdiction and the merits of the permit denial. A district court judge and the Seventh Circuit Court of Appeals both ruled for the federal government.
But the Supreme Court reversed the lower decisions. In particular, the court took issue with the importance of failed 1977 legislation that would have limited the Corps' jurisdiction. The Corps argued that Congress's failure to pass the bill indicated that lawmakers accepted the agency's broad definition of "navigable waters" to include isolated, intrastate waters.
"We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress' acquiescence to the Corps' regulations or the ‘Migratory Bird Rule,' which, of course, did not first appear until 1986," Rehnquist wrote.
"Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result," Rehnquist continued. "This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority. This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power."
"[W]e find nothing approaching a clear statement from Congress that it intended § 404(a) to reach an abandoned sand and gravel pit such as we have here," Rehnquist wrote.
The high court looked favorably on the Corps' original, 1974 interpretation of "navigable waters," which emphasized a water body's capability to accommodate transportation or commerce, and not the Corps of Engineers' more expansive, 1977 interpretation, which led to the Migratory Bird Rule.
In his dissent, Justice Stevens wrote that "simple common sense cuts against the particular definition of the Corps' jurisdiction favored by the majority." Stevens quarreled with the majority's reliance on the word "navigable," as he contended the term "navigable water" is "shorthand for waters over which federal authority may properly be asserted."
Stevens put great weight in the failed 1977 legislation because Congress did pass a law that specified some exceptions to the Clean Water Act, such as stock ponds, irrigation ditches and temporary sedimentation basins on construction sites. "The legislative history of the 1977 amendments therefore plainly establishes that, when it enacted § 404(g), Congress believed – and desired – the Corps' jurisdiction to extend beyond just navigable waters, their tributaries, and the wetlands adjacent to each."
Stevens said the majority was unfaithful to United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), in which the court upheld Corps jurisdiction over wetlands that abutted a navigable waterway.
Moreover, Stevens wrote, the Commerce Clause of the Constitution, Art. I, § 8, cl. 3, supports the Corps' jurisdiction in this case.
"The destruction of migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e.g. a new landfill) are disproportionately local, while many of the costs (e.g. fewer migratory birds) are widely dispersed and often borne by citizens living in other States. In such situations, described by economists as involving ‘externalities,' federal regulation is both appropriate and necessary," Stevens wrote.
In analyzing the decision, Plant, of Remy, Thomas & Moose, said that the definition of "adjacent" becomes significant, because the court appeared to uphold the Corps' of Engineers jurisdiction over wetlands and ponds adjacent to navigable waters.
Falk added, "It is significant that the court didn't rule on a constitutional basis. It ruled on a statutory basis and a legislative-intent basis." Thus, Congress could extend the Corps' jurisdiction by passing a law similar to the Migratory Bird Rule, although Falk conceded that was unlikely under the current Congress and Bush administration.
Environmentalist attorney Volker said the high court is moving toward dismantling many major statutes protecting the environment. Indeed, the court has already heard oral arguments this term in a case that could limit the Clean Air Act.
Solid Waste Agency of Northern Cook County v. United State Army Corps of Engineers, No. 99-1178, 01 C.D.O.S. 269, 2001 Daily Journal D.A.R. 267, decided January 9, 2001.