December 22‚ 2011
Appropriations Bill Does Not Limit Clean Water Act
The omnibus appropriations bill, which passed the House and
Senate this past Friday and Saturday, included numerous environmental and
energy riders, but it left out one that would have prevented the U.S. Army
Corps of Engineers (ACOE) from clarifying what is a “water of the United
States.” Some environmentalists claimed that such a rider would have denied
the Clean Water Act’s protection to one-fifth of the nation’s wetlands and
nearly two million miles of streams.
What is a “water of the United States” has been the subject
of three U.S. Supreme Court decisions and multiple rounds of guidance by
the Environmental Protection Agency (EPA) and the ACOE. In 1985, the
Supreme Court first held that wetlands adjacent to traditional navigable
waterways were “waters of the United States.”
1 In 2001, the Supreme Court decided that
non-adjacent wetlands were not protected based solely on seasonal migratory
bird use.2 Finally,
in 2006, the Court ruled 4-1-4 in Rapanos v.
United States that the Clean Water Act did not cover wetlands connected
to traditional navigable waters by drainage ditches and non-navigable
the Supreme Court split on the standard to be applied to determine what is a “water of the United States” subject to Clean Water
Act jurisdiction, so circuit courts have done the same. The Seventh
and Eleventh Circuits have used Justice Kennedy’s more expansive
“significant nexus” test, while the Third Circuit recently4 joined the First and Eighth
Circuits in applying both Kennedy’s test and Scalia’s “relatively
permanent” or “continuous surface connection” standard.
In 2003 and 2008, EPA and the ACOE co-produced guidance
attempting to resolve the confusion created by the Supreme Court’s
decisions and the failure of Congress to address that confusion. The most
recent guidance that EPA and the ACOE proposed in April 2011 sparked
Congressional opposition. That draft guidance more expansively defines
waters of the United States and uses that expanded definition for all Clean
Water Act provisions (the existing guidance was limited on its face to
Clean Water Act Section 404 determinations). A rider denying funding for
the 2011 guidance was first introduced by Sens. Barrasso
(R-Wyo.) and Heller (R-Nev.) as an amendment to the House version of the
proposed spending bill. The House approved the amendment in July, and the
Senate was poised to vote on the same amendment when the current version of
the bill passed both houses without the rider. GOP congressional leadership
has also opposed the 2011 guidance through a November 8, 2011 letter which
faulted the guidance for misinterpreting the Supreme Court decisions.5
EPA and ACOE recently agreed to finalize their interpretation
of a “water of the United States” in a final rule rather than going forward
with the April 2011 guidance. EPA advises that it will propose a rule for
public comment in 2012. Such a final rule would likely fare better in the
if “waters of the United States” is further defined in a final rule, unless
and until Congress acts, the term is sure to be the subject of continued
* * *
v. Riverside Bayview Homes, Inc., 474 U.S.
Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,
531 U.S. 159 (2001).
3 Rapanos v. United States, 547 U.S.
v. Donovan, 2011 WL 5120605 (3d. Cir. 2011).
part of a growing trend, a D.C. district court recently invalidated EPA
guidance on mining permits because it did not follow traditional notice and
comment rulemaking procedures. National Mining Association v. EPA,
2011 WL 4600718 (D.D.C. Oct. 6, 2011).