So-called isolated wetlands and waters are seldom truly isolated. As Congress correctly recognized in 1972, water moves in hydrologic cycles, pollution must be addressed at the source and pollution is more than adding chemicals to water[2]. Degrading the physical or biological integrity of water is pollution[3]. Discharging pollutants, whether they are oil, sewage or clean fill dirt, into bodies of water that are not navigable in the traditional sense can have severe adverse impacts on human health and aquatic ecosystems.

A substantial part of the state of Florida, like many other states, is covered by streams, lakes, ponds, swamps and marshes that do not meet the traditional tests of navigability[4] and are not tributary to waters that meet those tests. Even the Everglades, often characterized as a “River of Grass”[5], has many areas of wetlands and shallow, seasonal waterbodies that are geographically remote from traditional navigable waters and may be hydrologically connected only during high water conditions. Nevertheless, these areas are essential to the conservation of the larger aquatic ecosystem and to the quality and availability of the water on which the Everglades and everyone in South Florida depend. In the part of Florida where I live, we have numerous lakes and streams that sustain abundant fish and wildlife resources and provide recreational opportunities for residents and visitors from throughout the world. They are also resources of national importance and are vulnerable to every kind of pollution. In many cases they discharge to groundwater through sinkholes. Streams and lakes simply flow into the ground carrying pollutants and become part of our drinking water supply and the source of our springs. In many cases they are not navigable or directly connected to traditional navigable waters and under some interpretations of SWANCC would not receive the protections of the Clean Water Act or other federal environmental legislation. Florida illustrates why Congress defined “navigable waters” as “waters of the United States”.

Prior to 2001, there had been strong judicial support for comprehensive water pollution control including restrictions on the discharge of dredged or fill material to wetlands. The term “waters of the United States” had been given the expansive interpretation necessary to implement the intent of Congress[6].

The decision in SWANCC was a setback to the protection of water quality, not only from dredged or fill materials, but also from oil, toxics and conventional pollutants. SWANCC has been soundly criticized as an example of conservative judicial activism[7]. Those of us who study and implement the Clean Water Act have struggled to interpret the opinion and to reconcile it with previous decisions that were not overturned and with the language, structure and intent of the Clean Water Act. The lower federal courts have diverged in their interpretations. Most courts have interpreted SWANCC as being of very limited application, eliminating federal jurisdiction only over those waters that are hydrologically isolated and subject to federal regulation only through use by migratory birds[8]. That is the interpretation originally favored by the federal agencies[9] and consistently advocated by the Department of Justice in the briefs filed in appeals of many of the lower court rulings[10]. Other courts have gone beyond the specific holding in SWANCC and ruled that the Clean Water Act does not regulate the discharge of pollutants in areas that are not directly and closely connected to traditional navigable waters[11]. Most of these rulings are by lower courts and on appeal by the Department of Justice. The Corps of Engineers and Environmental Protection Agency have issued new guidance on the interpretation of SWANCC and initiated rulemaking on the definition of navigable waters[12]. Some development interests believe rulemaking is warranted to restrict Clean Water Act jurisdiction[13]. Conservation organizations are concerned that the notice of rulemaking implies too broad an interpretation of SWANCC and that the guidance memorandum is more restrictive of jurisdiction than is warranted14. Because the guidance memorandum only requires referral to headquarters when asserting jurisdiction, they fear that decisions to refrain from regulation are encouraged. Because there is no process to document the decision not to regulate an area, there is no way to know how many acres of wetlands are being lost through federal inaction, by what rationales, and with what ecological consequences.

The Court in SWANCC said navigable waters cannot be read completely out of the Act. It supported regulating those waters that have a “significant nexus” to navigable waters and wetlands that are “inseparably bound up with waters of the United States.” It did not specify, however, how close the connection to navigable waters must be. In U.S. v. Riverside Bayview Homes[15], the Court indicated a willingness to defer to the “ecological judgement” of the federal agencies in assessing the importance of specific areas to the overall integrity of aquatic ecosystems[16].

Rather than overreacting to SWANCC and adopting the most expansive interpretation of the case, the federal agencies should continue to argue for a narrow interpretation of SWANCC. The Supreme Court has demonstrated a willingness to retreat from the language in opinions authored by some of its more extreme members. For example, in Palazzolo v. Rhode Island[17], the Court resurrected long-standing tests for determining regulatory “takings” that had seemingly been rejected in the earlier opinion authored by Justice Scalia in Lucas v. South Carolina Coastal Council.18 The limitations on citizen suits of Steel Co. v. Citizens for a Better Environment[19], were subsequently retracted in Friends of the Earth v. Laidlaw Environmental Services[20].

Rather than unnecessarily accepting unwarranted limits on the jurisdiction of the Clean Water Act, the agencies should develop the case to protect waters that are vital to the integrity of aquatic ecosystems and defend it in the federal courts. That process is, to some degree, now occurring, and should not be preempted by premature regulatory action.

The “ecological judgement” of the agencies must be well-grounded in science. Numerous studies have supported the ecological value of “isolated” waters and wetlands. Congress should support the agencies in continuing to develop sound science and apply it making regulatory decisions.

Florida is better able than many states to withstand a curtailment of federal wetlands jurisdiction. Most states have no authority for regulating isolated wetland and all states depend on the federal programs. Wetlands are best protected when state and federal agencies support each other[21]. Florida regulates most so-called isolated waters and wetlands under state law, but there are significant adverse consequences to losing the federal participation in protecting all of our nation’s waters. Florida has failed to implement a wetlands regulatory program in the Panhandle, where promoters have begun hyping the “Great Northwest” and development is booming. Many thousands of acres of our rarest wetlands in that area have no protection without federal regulation. In other parts of the state, federal regulation is a critical supplement and backstop to the system of state wetland protections. The protection provided under Florida law to the wetlands habitat of endangered and threatened species is much less than that of the Endangered Species Act. Florida has nothing similar to the National Environmental Policy Act (NEPA) and therefore no requirements to comprehensively consider and disclose the direct, indirect and cumulative impacts of development decisions. Florida has weaker requirements for the use of practicable alternatives and is in the process of adopting a rule to weaken wetland mitigation requirements.

Finally, Florida’s natural resources are affected by the decisions made in other states. Much of our wildlife migrates between Florida and other states and depends on the integrity of wetlands outside our borders. Many of Florida’s rivers flow from Georgia and Alabama. The Suwannee and the St. Marys, for example, have their origins in the Okeefeenokee Swamp. A company is proposing to mine 300 acres of “isolated” wetlands adjacent to that National Wildlife Refuge that are not regulated under state law and will not be regulated by the Corps of Engineers. If the Okeefeenokee is degraded[22], two of Florida’s most famous rivers are at risk.

Congress could act to clarify the extent of Clean Water Act jurisdiction. Simply deleting any reference to navigability as a jurisdictional constraint would resolve the issue of statutory interpretation. Indeed, S.473, The Clean Water Authority Restoration Act, introduced in February 2003, would accomplish this result and is the ideal solution.

Even without new legislation, the Environmental Protection Agency and the Corps of Engineers could clarify the definition of “waters of the United States” in several important respects. They could eliminate, for example, the need to show that the degradation of a particular water affects interstate commerce. Dredging and filling are economic activities with substantial effects on interstate commerce and should be regulated as such. The agencies could clarify that tributaries include any system of artificial or natural streams, ditches, drains, swales, arroyos, aquifers or other drainage features that is reasonably likely to convey water to navigable waters. They could define navigable waters to include waters that used or susceptible of use for recreational purposes. They could define the concept of adjacency to ensure that any waters or wetlands that bear a significant ecological relationship to navigable waters are regulated.

Substantially revising a regulatory definition that has worked effectively and withstood many legal challenges, however, seems premature, especially if the effect is to reduce the geographic scope of the Clean Water Act beyond that specifically required by the narrow holding of SWANCC. The importance of the nation’s waters is not defined by navigability. That fact was clearly recognized by Congress in 1972 and again in 1977. The discharge of oil, toxic substances or untreated sewage into an “isolated” wetland or body of water, or a remote stream, can have devastating consequences for human health and the environment. When the Supreme Court is presented with a case involving more ecologically compelling facts than an abandoned gravel pit, it may recognize the importance of upholding the intent of Congress to protect the integrity of all of the nation’s waters. It may also choose to further curtail federal authority, but it has not done so yet and we should not assume that it will do so in the future.

NOTES

[1] 531 U.S. 159 (2001).

[2] S. Rep. No. 92-414, p.77 (1972), U.S. Code Cong. & Admin. News 1972, pp. 3668, 3742.

[3] The goal of the Clean Water Act is “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” Clean Water Act §101, 33 U.S.C. §1251. According to the House Report, “the word ‘integrity’. . . refers to a condition in which the natural structure and function of ecosystems is maintained.” H.R. Rep. No. 92-911, p. 76 (1972).

[4] The 11th Circuit has redefined navigability in the narrowest possible terms, holding that Fisheating Creek was not navigable for regulatory purposes because it was not part of a continuous, interstate highway for waterborne commerce. Lykes Bros. v. U.S. Army Corps of Engineers, 64 F.3d 630 (11th Cir. 1996).

[5] Marjory Stoneman Douglas, THE EVERGLADES: RIVER OF GRASS (1947).

[6] U.S. v. Eidson, 108 F.3d 1336 (11th Cir. 1997); U.S. v. Holland, 373 F. Supp. 665 (M.D. Fla. 1974).

[7] See e.g., Richard J. Lazurus, Environmental Law and the Supreme Court: Three Years Later, 19 Pace Envtl. L. Rev. 653 (2002).

[8] See e.g., U.S. v. Krilich, 303 F.3d 784 (7th Cir. 2002), cert. denied 123 S. Ct. 1782 (2003); Headwaters v. Talent Irrigation District, 243 F.3d 526 (9th Cir 2001); U.S. v. Interstate General Co., 152 F. Supp. 2d 843 (D. Md. 2001), aff’d 2002 U.S. App. WL 1421411 (4th Cir. 2002); U.S. v. Buday, 138 F. Supp. 2d 1282 (D. Mont. 2001).

[9] Gary S. Guzy, General Counsel, U.S. Environmental Protection Agency and Robert M. Anderson, Chief Counsel, U.S. Army Corps of Engineers, Memorandum: Supreme Court Ruling Concerning CWA Jurisdiction over Isolated Waters (January 19, 2001).

[10] See e.g., United States Brief in Response to Defendant’s Motion for Reconsideration and in Preparation for Site Visit, p.7, United States of America v. James S. Deaton, Civil No. MSJ-95-2140, U.S. District Court, Maryland

[11] See e.g., Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001); U.S. v. Rapanos, 190 F. Supp 2d 1011 (E.D. MI, 2002), appeal pending No. 02-1377 (6th Cir.); U.S. v. Newdunn Assoc., 195 F. Supp 2d 751 (E.D. Va. 2002), appeal pending, No. 02-1594 and 02-1480 (4th Cir.).

[12] Corps of Engineers and Environmental Protection Agency, 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. Appendix A of the ANPR is a guidance document for interpreting SWANCC issued by Robert E. Fabricant, General Counsel, Environmental Protection Agency and Steven J. Morello, General Counsel, Department of the Army.

[13] For the view that SWANCC is based on a correct interpretation of Congressional intent, see Virginia S. Albrecht and Stephen M. Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act, 32 ELR 11042-11058 (Sept. 2002).

[14] See National Wildlife Federation et. al, Comments for the EPA Water Docket, OW-2002-0050, Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of “Waters of the United States”, April 16, 2003; Jay Austin, No Need for EPA to Act After Court Ruling, The Environmental Forum 52-53 (May/June 2003).

[15] 474 U.S. 121 (1985).

[16] 474 U.S. at 134-135.

[17] 533 U.S. 606 (2001).

[18] 505 U.S. 1003 (1992).

[19] 523 U.S. 83 (1998).

[20] 528 U.S. 167 (2000).

[21] Jon Kusler, “Impinging on the States”? We Don’t Think So, The Environmental Forum, 55-56 (May/June 2003).

[22] The Department of Interior has expressed significant concern over the hydrologic impact of mining adjacent to the Okeefeenokee National Wildlife Refuge.