Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Will Congress Prohibit Rulemaking to Clarify Clean Water Act Jurisdiction?

In the 2006 Carabell/Rapanos decision, the Supreme Court Justices lamented the absence of rulemaking following the SWANCC decision (2001) and recommended rulemaking as a follow-up to the Carabell/Rapanos decision.  Now, the House and possibly the Senate, are including language in the appropriations bill for energy and water development to explicitly prohibit the U.S. Army Corps of Engineers (Corps) from conducting rulemaking or taking any other actions to provide greater certainty to the scope of Clean Water Act jurisdiction.  An amendment in the House appropriations bill (H.R. 2354) reads:

“None of the funds made available by this Act or any subsequent Act making appropriations for Energy and Water Development may be used by the Corps of Engineers to develop, adopt, implement, administer, or enforce a change or supplement to the rule dated November 13, 1986, or guidance documents dated January 15, 2003, and December 2, 2008, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).”

Similar language has been introduced (S.A. 939) by Senator Barasso:

“On page 88, between lines 18 and 19, insert the following:

Sec. 1__. None of the funds made available by this or any other Act making funds available for energy and water development may be used by the Corps of Engineers to develop, adopt, implement, administer, or enforce a change or supplement to the rule entitled “Final Rule for Regulatory Programs of the Corps of Engineers” (51 Fed. Reg. 41206 (November 13, 1986)) (as in effect on the date of enactment of this Act), or to the guidance documents entitled “Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of `Waters of the United States’ ” (68 Fed. Reg. 1991 (January 15, 2003)), and “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in `Rapanos v. United States & Carabell v. United States’” (December 2, 2008) (as in effect on that date of enactment), relating to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).”

In 2006 Chief Justice Roberts in his concurring statement with the plurality in Carabell/Rapanos was highly critical of the failure of the Corps to complete rulemaking following the SWANCC decision.  He pointed out that after the Corps and the U.S. Environmental Protection Agency (EPA) requested comments through an advanced notice in the Federal Register:

“The proposed rulemaking went nowhere. Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the  Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.”

In the plurality decision Justice Scalia noted:

“The Corps provided notice of a proposed rule-making in light of SWANCC, 68 Fed. Reg. 1991 (2003), but ultimately did not amend its published regulations.”

Justice Scalia went on to criticize the Corps’ interpretation of Clean Water Act jurisdiction inferring that rulemaking would have accomplished the task of appropriately reducing the extent of jurisdiction and negating the need for the Supreme Court to weigh in again with Carabell/Rapanos.

In the dissent Justice Stevens stated:

Through regulations or adjudication, the Corps may choose to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.   The Corps’ existing standard for tributaries, however, provides no such assurance.

Finally, Justice Breyer (also dissenting) added:

If one thing is clear, it is that Congress intended the Army Corps of Engineers to make the complex technical judgments that lie at the heart of the present cases (subject to deferential judicial review). In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law. That is not the system Congress intended. Hence I believe that today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so.
http://aswm.org/pdf_lib/rapanos-decision-SCOTUS.pdf

In 2008 following the Carabell/Rapanos decision, the agencies issued guidance in 2008http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_
wetlands_CWA_Jurisdiction_Following_Rapanos120208.pdf
but chose not to pursue rulemaking.  In subsequent years it appeared that Congress might take action on the “Clean Water Restoration Act” bills introduced into Congress, but these did not garner the support necessary to move them forward in either the House or Senate.  In the 112th Congress no bills have been introduced in the House or Senate to clarify jurisdiction.

This spring  USEPA and the Corps proposed new guidance and indicated rulemaking would follow. http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf The agencies received 300,000 comments and many of the commenters requested the agencies set aside the guidance in favor of undertaking rulemaking. The agencies have done so. http://yosemite.epa.gov/opei/RuleGate.nsf/byRIN/2040-AF30?opendocument

But if the amendment introduced by Senator Barasso is added to the Senate appropriations, the bill forwarded to the President for signature will prohibit rulemaking or any other activity to clarify jurisdiction.

The amendment to prohibit rulemaking is supported by private property rights advocates and portions of the businesses community.  Sportsmen’s, conservation and environmental groups have supported rulemaking and opposed the amendments.

PRA Supports the Barrasso-Heller Amendment (#939) to the Energy and Water Minibushttp://propertyrightsalliance.org/userfiles/111411la_BarrassoHeller.pdf
Senate Amendment Threatens America’s Clean Water Legacy
http://www.salem-news.com/articles/november142011/clean-water.php
Wetland Guidance Document Opposed
http://www.icsc.org/homepage/gpp_article.php?id=142
Protecting the Environment and Jobs
http://www.nola.com/opinions/index.ssf/2011/11/protecting_
the_environment_and.html

Who benefits and who is hurt by the lack of clarity concerning jurisdiction?  The answer is complex.  But for simplicity’s sake consider the plight of one landowner who currently can expect to have his land trashed and flooded for the foreseeable future because of the actions of his upstream neighbors.

OR: Boring resident challenges idea that land-use regulations hurts rural economies
http://www.oregonlive.com/happy-valley/index.ssf/2011/11/boring_resident_refutes_idea_t.html

The failure to provide clarity on Clean Water Act jurisdiction represents a failure on behalf of the Supreme Court, Congress and the Administration.   In government the easiest actions to take are those that prevent something from happening.  The hardest are those that make something happen.

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