National Waterways Conference

Annual Meeting 2009

CLEAN WATER ACT

Sean M. Sullivan Williams Mullen Presented by Kathleen HolmesWilliams Mullen

History: Trends

• Less EPA Discretion

• Missed Deadlines Court Orders & Consent Decrees

• Increasing Focus on Toxics

• Loosening of Municipal Standards

• Increasing Penalties

Core Provisions: The 3 P’s

Prohibition - § 301

Permits - §§ 402, 404

Penalties - § 309

3 P’s: Prohibition: § 301(a)

Any discharge of pollutants from a point source to navigable waters is prohibited, except as permitted

Navigable waters:

waters of the United States, including the territorial seas

Congress sought broadest possible definition under the Commerce Clause, beyond “traditionally navigable” waters.

3 P’s: Permits

National Pollutant Discharge Elimination System (NPDES) - § 402Federal-State “Partnership”

Federally designed

State administered, Federally supervised

5-year Permits

46 of 55 States have NPDES Programs

3 P’s: PenaltiesAdministrative Penalties, § 309(g)

Class I: $11,000/$27,500 ($12,000/$31,500)Class II: $11,000/$137,500

($12,000/$157,500)

Civil Penalties, § 309(d)

Federal district courts$27,500 per day per violation ($31,500)

Federal Civil Penalties Inflation Adjustment Act of 1990, note at 28 U.S.C. § 2461, 40 C.F.R. § 19.4(2000)

67 Fed. Reg. 41343 (June 18, 2002), eff. Aug. 19, 2002.

3 P’s: Criminal Penalties

Negligent violations

$2,500 to $25,000 fine1-year imprisonment

Knowing violations

$5,000 to $50,000 fine3 years

Knowing endangerment

$250,000/$1,000,000 fine

15 years

United States v. Rapanos

• Supreme Court “clarifies” jurisdiction of Corps over wetlands

United States v. Rapanos126 S.Ct. 2208 (2006)

Background – case involves two parcels of land containing wetlands that are “adjacent” to tributary of navigable water

Corps’ statutory jurisdiction extends to “navigable waters,” defined as “waters of the United States”

United States v. Rapanos

Background (cont’d)

Corps interprets its jurisdiction to include:

• Navigable water bodies

• Tributaries to navigable water bodies

• Wetlands adjacent to both

United States v. RapanosPrior related case:

United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)

• Corps has jurisdiction over wetlands adjacent to navigable water bodies because of difficulty in determining where water ends and land begins

• Court reserved issue of Corps’ jurisdiction over wetlands adjacent to tributaries of navigable waters

United States v. Rapanos Another prior related case:

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001)

Isolated, abandoned gravel pit occasionally providing shelter to migratory birds is not “water of the United States”

– Pit had no “significant nexus” to navigable waters

United States v. Rapanos

• The Decision

5-4 vote to remand case

Plurality Opinion (Scalia) – four votes• Remand to apply proper understanding of “waters of the United States”

United States v. Rapanos

• The Plurality Opinion

Scalia, Roberts, Thomas, Alito

Notes Riverside Bayview left open status of wetlands in tributaries to navigable waters

Evaluates whether “waters of the United States” includes intermittently flowing tributaries

• Uses Webster’s Dictionary to define “waters”

United States v. Rapanos

• The Plurality Opinion (cont’d)

Corps’ jurisdiction over tributary and adjacent wetlands depends on regular water flow

Establishing that tributary empties into navigable water (when flow is present) not enough

United States v. Rapanos• Justice Kennedy’s Concurrence

Focuses on whether there is “substantial nexus” between wetland and navigable water

Approach comes from court’s decision in SWANCC

J. Kennedy would have Corps evaluate effect of wetland on water quality in navigable water and base jurisdictional decision on existence of such an effect

United States v. Rapanos

• Justice Kennedy’s Concurrence (cont’d) J. Kennedy’s approach rejected by

plurality and dissent as unauthorized by the CWA

United States v. Rapanos• Justice Stevens’ Dissent

Riverside Bayview controls outcome

Defers to Corps’ exercise of jurisdiction on Chevron grounds:• Corps determined wetlands adjacent to tributaries of navigable waters can affect water quality of navigable waters

• This is reasonable basis for Corps to assume jurisdiction

United States v. Rapanos

• Justice Stevens’ Dissent (cont’d)– Advises the lower courts to find

jurisdiction if either the Plurality test or the Kennedy test is satisfied.

The Aftermath of Rapanos

• “ It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will have to fee their way on a case-by-case basis.” Rapanos at 758 (Roberts, C.J. concurring).

The Aftermath of Rapanos

• The First Circuit– United States v. Johnson, 467 F.3d 56

(1st Cir. 2006).• Court follows J. Stevens’ advice.

• If a wetland satisfies either the Plurality test or the Kennedy test, it is a water of the United States.

The Aftermath of Rapanos

• The Seventh Circuit– United States v. Gerke Excavating Co.,

464 F.3d 723 (7th Cir. 2006). • Court finds, as a practical matter, that

the Kennedy test determines whether a wetland is falls under federal authority.

The Aftermath of Rapanos

• The First Circuit– U.S. v. Johnson, 467 F.3d 56 (1st Cir.

2006)• Act confers jurisdiction whenever either

the plurality’s test or Justice Kennedy’s test is met

The Aftermath of Rapanos

• The Ninth Circuit– Northern California River Watch v. City of Healdsburg,

457 F.3d 1023 (9th Cir. 2006).• Court ruled that a pond was a water of the United

States and subject to NPDES permitting jurisdiction.• Decision relies on definition of wetland as being

“areas inundated or saturated by surface or groundwater.”

• Court held that the pond was a wetland adjacent to a navigable water and that the pond had a significant nexus to the navigable water due to the hydrological connection between them.

The Aftermath of Rapanos

• The Ninth Circuit (cont’d)– San Francisco Baykeeper v. Cargill Salt

Division, 481 F.3d 700 (9th Cir. 2007).• Court finds that a pond adjacent to a

navigable water is not a water of the United States.

• Court assumes that the pond is not a wetland because Baykeeper did not assert that it was one.

• Thus, the Court did not engage in the adjacent wetland analysis from City of Healdsburg.

The Aftermath of Rapanos

• The Second Circuit: – Simsbury-Avon Preservation Society v. Metacon

Gun Club, 575 F.3d199 (2nd Cir. 2009)• Resource Conservation Recovery Act and CWA for

polluting effect of lead shot • Trial court dismissed RCRA and CWA claim -- SAPS did

not provide sufficient evidence that area at edge of wetland was “navigable waters”

• Affirmed - no material issue of fact raised as to whether the berm at edge of range or entire shooting range was a jurisdictional wetland.

• Alternate affirmation - insufficient evidence to establish a “point source” and that “nonpoint sources” are left to state regulation

The Aftermath of Rapanos

• The Sixth Circuit– U.S. v. Cundiff, 555 F.3d 200 (February

2009)• After determining that the plurality opinion and

Justice Kennedy’s concurring opinion cannot be reconciled, the court concludes (with apparent relief) that “Here, jurisdiction is proper under both Justice Kennedy’s and the plurality’s tests (and thus also with the dissent’s)”

• Court noted that the Supreme Court had denied cert in 2 cases that presented the question of which test controlled. U.S. v. Robison (11th Cir) and U.S. v. Lucas (5th Cir.)

The Aftermath of Rapanos

The Eleventh Circuit: – Friends of the Everglades v. South

Florida Management District, 570 F.3d 1210 (June 2009)

» noting sweeping intent of 1972 Senate Conference Report intending to extend application of the CWA to reach full constitutional limits under the Commerce Clause, but limiting review to specific statutory language before it

Agency Response

• June 2007 guidance from EPA and Department of the Army

• 66,000+ public comments

• Revised guidance issued December 2, 2008

Clean Water Restoration Act• S.787 111th Congress

Title: A bill to amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States. Sponsor: Sen. Feingold, Russell D. [WI] (introduced 4/2/2009)      24 Cosponsors (24) Latest Major Action: 6/18/2009 Senate committee/subcommittee actions. Status: Committee on Environment and Public Works. Ordered to be reported with an amendment in the nature of a substitute favorably.

S. 787 – navigable waters

• Clean Water Restoration Act - Amends the Clean Water Act to replace the term "navigable waters" that are subject to such Act with the term "waters of the United States," defined to mean all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution.

S. 787 – other changes

• Declares that authority of the Secretary of the Army or the Administrator of the Environmental Protection Agency (EPA) under the provisions of the Clean Water Act is unchanged as related to discharges: (1) composed entirely of return flows from irrigated agriculture; (2) of stormwater runoff from certain oil, gas, and mining operations; (3) of dredged or fill materials resulting from limited activities (farming, conservation, state conservation practices); or (4) of dredged or fill materials for the farming uses, temporary mining management, temporary sedimentation basins

• Conclusions– Higher evidentiary burdens– Anticipated constitutional challenges

under proposed Restoration Act language

Questions?

Sean Sullivan

Williams Mullen

ssullivan@williamsmullen.com