Nearly two and a half years ago, the Supreme Court ruled that the Corps and EPA had exceeded their authority under the Clean Water Act (CWA). Up until this case, the agencies had assumed that the CWA had granted them jurisdiction over virtually all waters potentially affecting commerce in the nation. The Supreme Court rejected that claim in the SWANCC case.
Rather than expand Corps and EPA jurisdiction to the very ends of the commerce clause, the Court chose to read the statute as it was written. Consequently, the Corps and EPA have jurisdiction over navigable waters and waters that are “inseparably bound up with” navigable waters.
Whether one agrees or disagrees with the Supreme Court’s decision, the fact remains that it significantly changed the jurisdiction of the Corps to regulate isolated waters.
On the last day of the Clinton Administration, the Corps and EPA issued a joint memorandum to their regional offices. While this memo was swiftly issued, it appears to have done little to clarify Federal jurisdiction in light of the SWANCC decision. According to the memo, “Jurisdiction over such ‘other waters’ should be considered on a case-by-case basis in consultation with agency legal counsel.”
This case-by-case approach resulted in widely varying interpretations of the scope of jurisdiction by Corps and EPA field offices. Not only does there seem to be no consistency in what simple terms such as isolated, adjacent or tributary mean. But there are also huge disparities in what type of information and criteria are used for determining jurisdiction. Some regional offices are making jurisdictional determinations in the office, using maps and aerial photography, while others are conducting site visits.
Nineteen states provide considerable protection for isolated freshwater wetlands including Maine, Connecticut, New Hampshire, Rhode Island, Massachusetts, Vermont, New York, New Jersey, Maryland, Delaware, Florida, Minnesota, Michigan, Pennsylvania, Oregon, South Carolina, Tennessee, West Virginia and Wisconsin. Another 8 states provide at least partial regulation for freshwater wetlands adjacent to tributaries California, Hawaii, Indiana, Nebraska, North Dakota, Ohio, Virginia and Washington State.
Other States are reviewing their wetland laws. But until the extent of federal jurisdiction is clarified, many may be reluctant to establish extensive regulatory programs of their own.
The guidance issued by the agencies last January, like the Clinton Administration guidance, did little to clear up the quagmire of nebulous regulations. By providing no detailed or definitive criteria for field staff, Corps and EPA Headquarters have simply perpetuated the already intolerable level of confusion in the 404 Program.
Even the occasional glimmer of clarity is muddled by the fact that the agencies have refused to define such basic terms as isolated and adjacent.
For example, according to the guidance the agencies are now precluded from asserting jurisdiction over “waters such as isolated, non-navigable, intrastate vernal pools, playa lakes and pocosins.”
It immediately raises the question of how to one would determine if a particular wetland is isolated.
According to Corps regulations (33 CFR § 330.2 (e)):
“Isolated waters means those non-tidal waters of the United States that are:
(1) Not part of a surface tributary system to interstate or navigable waters of the United States; and
(2) Not adjacent to such tributary waterbodies.”
The Corps and EPA currently define “adjacent” as “bordering, contiguous, or neighboring.”
In order to further resolve the meaning of “adjacent,” the guidance helpfully points out that, “The Supreme Court has not itself defined the term ‘adjacent,’ nor stated whether the basis for adjacency is geographic proximity or hydrology.”
Rube Goldberg would have been proud.
The fact that two an a half years after the Supreme Court decision, the agencies have not proposed any changes to their regulations is disturbing on two counts. First, that the American public has been subjected to an arbitrary and inconsistent regulatory policy. And second, it casts doubt on the ability of the Corps and EPA prioritize their scarce resources in order to maximize protection of the environment.
From their prepared testimony it appears that the agencies at least recognize that there is a problem. I just hope that they follow through on their pledge of responsible stewardship and ensure that Federal programs effectively and consistently maintain environmental protection.