Posted: April 10, 2014
Source: Environmental Leader.com
By: Jon Elliott, President, Touchstone Environmental, Contributor, Specialty Technical Publishers
The Clean Water Act (CWA) provides federal agencies with authority to regulate a wide range of activities that may affect “waters of the United States”—sometimes called “navigable waters.” These activities include water quality planning and discharge regulation by the EPA and delegated states, and regulation of projects that may lead to “dredge and fill” of waters, through permits issued by the US Army Corps of Engineers.
How Have the Definitions Evolved?
CWA does not provide a statutory definition of the waters it covers, and CWA Section 502 defines “navigable waters” as “waters of the United States, including territorial seas.” This vague and circular definition has left agencies and courts to decide which waters are covered, and therefore which CWA programs apply. Not surprisingly, EPA and the Corps established expansive interpretations, which for decades allowed them to regulate a wide range of activities. The US Supreme Court upended these interpretations in a series of decisions beginning in 2001. First, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers [SWANCC], the Court ruled that the Corps lacks jurisdiction over “isolated” waters and wetlands that are not “adjacent” to navigable waters—such as “prairie potholes,” mudflats, and freshwater seasonal ponds. Then, in Rapanos v. United States, the Court (in a 4-4-1 fragmented opinion with Justice Kennedy’s opinion the effective decision of the Court) ruled in 2006 that the Corps can exert jurisdiction over non-adjacent wetlands when it can demonstrate on a case-by-case basis that there is a “significant nexus” between the wetlands and navigable waters (in addition, opinions signed by eight of the justices required that the wetlands be at least “relatively permanent”).
These Supreme Court decisions led the agencies to evaluate their jurisdiction over waters on a case-specific basis far more frequently, complicating their regulatory programs. To attempt to clarify and streamline regulation, on March 25 they have jointly proposed a definition that incorporates the Supreme Court’s guidance. The central provision of this 370 page document is the following definition:
Continue reading Redefining ‘Waters of the United States’