Waterlogged

When the U.S. Supreme Court issued its decision in Rapanos v. United States, 126 S. Ct. 2208 (June 14, 2006), this column noted three different views on how to define waters protected by the federal Clean Water Act. [See “Parsing the Waters,” Waste Age, Sept. 2006, p. 14.]

Arguably, the ruling contained as many as five separate mini-opinions on whether federal jurisdiction is limited to areas immediately adjacent to permanent bodies of water or extends even to areas relatively remote from traditional interstate navigable waters.

The decision will influence expected federal rulemaking initiatives affecting all development, including landfills and other waste facilities, near bodies of water.

Ultimately, five justices were able to agree only that the U.S. Army Corps of Engineers exceeded its authority to regulate wetlands. No thanks to Congress, which unhelpfully defined “navigable waters” as “waters of the United States,” federal regulators and the courts have struggled and will continue to struggle with limiting or wide-ranging definitions.

At least two post-Rapanos opinions — one from Texas, the other from California — illustrate that confusion is likely to prevail unless and until the U.S. Environmental Protection Agency issues clarifying guidelines or regulations or (don't hold your breath) Congress amends the Clean Water Act with a workable definition of the waterways it intends to protect.

In U.S. v. Chevron Pipe, 437 F.Supp. 2d 605 (N.D.Tex. 2006), federal prosecutors sought civil penalties for a spill of 3,000 gallons of crude oil into a dry, intermittently flowing tributary in Texas that is 40 miles from the nearest river. Assuming that the act covered the tributary, the government offered no evidence that any oil actually reached navigable waters.

U.S. District Judge Sam Cummings rejected Justice Anthony Kennedy's “significant nexus” test and instead cited Chief Justice John Roberts' solo concurrence: “No opinion commands a majority of the court on how to read … the [act, so] lower courts will now have to feel their way on a case-by-case basis.” Judge Cummings concluded no federal jurisdiction existed. “[T]here must be a close, direct and proximate link between … [the] … discharges of oil and any resulting actual … contamination of natural surface water,” he said.

Reaching a different conclusion, the U.S. Court of Appeals for the Ninth Circuit upheld a claim that a wastewater treatment plant in California illegally discharged millions of gallons into a wetland area separated from the Russian River by a levee. [Northern Calif. River Watch v. City of Healdsburg, 457 F.3d 1023 (2006).] The appeals court found no difficulty in applying the significant-nexus test, using the lower court's findings on direct seepage, drainage via groundwater, overflow and effects on the chemical integrity of the river.

As the appeals court saw it, the Kennedy test required that the “nexus … be assessed in terms of the [act's] goals and purposes,” including “to restore and maintain the chemical, physical and biological integrity of the nation's waters.”

Over the next few years, the legal landscape is likely to be cluttered with varying judicial interpretations of the Rapanos decision. To be sure, it is a sorry situation that reflects a profound disorder in our highest court.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.