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Administration's Draft Wetlands Plan Breaks With DOJ Legal Arguments

Source: Inside EPA via InsideEPA.com

Date: November 7, 2003

Draft Bush administration rule language scaling back federal wetlands jurisdiction breaks sharply with Justice Department (DOJ) views that Congress and the courts have already granted EPA and the Army Corps of Engineers with Clean Water Act (CWA) authority that extends beyond the draft rule's limits.

The draft rule language also appears to undermine EPA's position that current law provides the agency with broad jurisdiction.

Environmentalists and industry sources say that if the draft language were to be proposed in its current form, it could undermine DOJ arguments in pending cases before the Supreme Court. The draft rule language also comes as EPA officials say they are still assessing over 100,000 public comments to determine whether they should develop a proposed rule.

Despite EPA and DOJ's positions, environmentalists earlier this week distributed draft administration rule language that would significantly scale back federal authority over many wetlands, intermittent and ephemeral streams, and others waters. Property developers, other industry sectors and some administration officials believe the water law prevents federal regulation of many of these waters because they lack clear connections to navigable rivers and lakes.

But a DOJ lawyer this week publicly affirmed a legal interpretation that collides with the draft rule language, although the presentation did not directly address the draft language.

At a Nov. 6 forum sponsored by the American Law Institute-American Bar Association, DOJ attorney Ethan Shenkman, in a session on wetlands case law, echoed DOJ arguments in key wetlands enforcement lawsuits that Congress intended the CWA to protect a host of minor waters and wetlands because pollutants placed in these waters can reach larger "navigable" waters. Shenkman's presentation, which included a seven-point defense of broad wetlands jurisdiction, did not address the draft rule directly.

"You cannot protect traditional navigable waters unless you protect the non-navigable waters that flow into them," he said. Industry attorneys, however, say the so-called "eventually flows" doctrine provides the federal government nearly limitless jurisdiction.

Bush administration officials say they are considering developing a rule to clarify CWA jurisdiction in light of the Supreme Court's 2001 decision in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers. The decision barred EPA and the Corps from citing the presence of migratory birds to justify regulation of "isolated" wetlands because they do not demonstrate a sufficient connection to "navigable waters."

The ruling has sparked massive controversy over whether its holding blocks the regulation of many intermittent streams and other waters that EPA and Corps regulations cite as jurisdictional. The controversy rests on how to interpret the CWA's brief statutory definition of protected waters. The law protects "navigable waters" and defines them as "waters of the United States, including the territorial seas."

But Shenkman called it "ahistorical" to argue Congress envisioned significant limitations on the water law when declaring jurisdiction over waters of the U.S., and said legal precedent allows the agencies to enact a broad regulatory definition.

"It is obvious that Congress intended to charge the agencies implementing the statute with responsibility for defining [waters of the United States]," he said, adding that the Supreme Court's decision in Chevron USA v. NRDC provides federal agencies leeway to interpret statutes when the text itself is unclear.

He also argued that congressional reauthorization of the statute in 1977 includes legislative history refuting narrow jurisdiction.

Until now, DOJ has mostly successfully convinced federal appeals courts that CWA oversight extends to small streams and their adjacent wetlands that are only remotely connected to major navigable waters. Federal regulators rely on their jurisdiction over small streams, some man-made conveyances and other waters to enforce permitting requirements for altering wetlands next to these tributaries.

In his presentation, Shenkman praised the U.S. Court of Appeals for the 4th Circuit's ruling this year in U.S. v. Deaton, which held that wetlands adjacent to a man-made roadside ditch in Maryland fell under CWA jurisdiction – a broad view that would likely not be permissible under the rule changes contained in the draft language. Claiming "Deaton got it right," the presentation praises the 4th Circuit for affirming jurisdiction over "any branch of a tributary system that eventually flows into a navigable water."

Current Corps regulations allow federal regulation of major surface lakes and rivers, and nearly any water with a connection to interstate commerce, based on the presence of shellfish, use for tourism or other factors, including wet meadows, ponds, intermittent streams and others. It specifically allows oversight of "tributaries" and wetlands "adjacent" to jurisdictional waters.

But the draft rule language would restrict this definition to the territorial seas, "traditional" navigable waters, tributaries of traditional navigable waters and wetlands adjacent to these waters. The language defines key terms in a way that environmentalists say would remove significant numbers of waters from federal jurisdiction.

For instance, it defines tributaries as waters that contribute "regular and recurrent flows" to traditional navigable waters, excludes rain-fed "ephemeral" streams from the tributary definition, and states that "intermittent streams" must have flowing water for at least six months a year.

The language does allow tributaries that flow through manmade conveyances, such as pipes and ditches, before reaching traditional navigable waters to remain under CWA jurisdiction in some cases. Yet it also claims that these conveyances are not themselves "waters of the United States," which appears to limit regulation of wetlands adjacent to some manmade conveyances.

The draft language comes as property developers are asking the Supreme Court to review at least two, and probably more, cases upholding federal regulation of wetlands adjacent to minor streams or ditches that eventually flow into major surface waters. Industry sources and environmentalists say that if the high court hears the cases, and the draft language were to become a proposed rule while the appellate cases are before the court, it could influence the outcome.

The already filed and pending certiorari petitions address cases, such as Deaton and U.S.A. v. Newdunn Associates, in which the 4th Circuit agreed with federal lawyers that wetlands adjacent to waters that flow through minor streams and manmade conveyances before eventually reaching navigable waters are jurisdictional under the CWA.

"Those cases are filed and would continue under existing law. But I could not tell you that the court would not consider [a proposed rule based on the draft language]," says one environmentalist. "It would undermine the case of the United States." One industry attorney says, "It would present conflicting statements between what the agencies are saying and what DOJ is saying."

In addition, environmentalists say changing the definition of waters protected by the Corps' wetlands regulation would affect other regulations, including CWA point source discharge regulations, which rest on the same definition.

But EPA officials say the language does not reflect the agency's position and officials are still assessing more than 100,000 comments they received in response to an Advance Notice of Proposed Rulemaking stating that the agency may issue a proposed rule on CWA jurisdiction.

"It's in the very early stages. No decision has been made," says an EPA spokesperson. "We are the lead agency and we hold the pen on this." The spokesperson says the agency had no role in drafting the language. One published report said the Army Corps and DOJ developed the language.

A White House Council on Environmental Quality (CEQ) source says the language does not indicate the direction of the potential rule, or whether it will be proposed at all. The source calls the language only one version of "what a proposal could possibly be," and says the president is committed to the administration's "no net loss" of wetlands policy.

One source says CEQ chair James Connaughton told environmentalists that the language is one among multiple possibilities.

Environmentalists have made fighting the potential rulemaking their highest priority on water issues, and many industry and government observers believe the administration is unlikely to move forward with a formal proposal until after the 2004 elections.

Nonetheless, the draft language's emergence could force new EPA head Mike Leavitt, who took office the day the draft was circulated, to confront the issue, according to one environmentalist. "It places this right in his lap," the source says. -- Ben Geman

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This material originally appeared in INSIDE EPA, November 7, 2003. It is reprinted here with permission of the publisher, Inside Washington Publishers. Copyright 2003. All rights reserved.