The United States Supreme Court has recently heard arguments in a set of cases that could dramatically limit the reach of the Clean Water Act (CWA). The CWA, signed into law in 1972, gave the federal government power to protect the nation's waterways, and to regulate millions of acres of wetlands and the tributary systems that discharge into those waterways. This will be the first time this court has heard a major environmental decision.
The implication is that a defeat for the federal government could signal the beginning of a major retreat from the broader federal protection of the environment. What this means to us is the ability of the state and federal government to regulate the quality of the nation's waters. In the cases being considered, the states largely support the federal government's position.
So what are potential implications to us? What are the implications to our water quality treatment plant or flood protection efforts if California doesn't maintain (at the state line) strict drinking water and flood control standards for the Truckee River? What could this mean with respect to the negotiated settlements concerning the Truckee River? It's not just rivers, it's the tributary systems, the water quality of hundreds of drainages, creeks, sloughs, and ditches that discharge to rivers. Add to that upstream flood protection and you begin to understand just how large this decision is and the major implications to our drinking water, swim-able rivers, fisheries, and flood protection.
Bottom line: The Supreme Court will be deciding whether waters that flow into navigable waters or, waters of the United States must be protected. At issue is the intent of the CWA (which is to protect the chemical, physical and biological integrity of the nation's waters). If you're going to protect navigable waters you have to have a way to protect waters that flow into navigable waters. Or do you?
Two cases that were heard in February focus on the Congressional intent when it passed the CWA. The question before the Supreme Court is this: "What does the term navigable waters of the United States mean?" You may hear the terms "navigable in-fact waters" and "historically navigable waters." The Bush administration has agreed with past administrations that Congress defined both navigable water terms as "waters of the United States" (WOUS) and that Congress meant the term to be broadly applied (meaning all waters including wetlands and tributaries) and delegated to the Corps of Engineers and Environmental Protection Agency with broad rule-making authority and enforcement powers.
What the general public may not be aware of is that Congress and the Corps' relationship started with the Rivers and Harbors Act of 1899. That act defined historically navigable waters as those channels that would protect interstate commerce by keeping shipping routes open and navigable. As the country developed, a succession of legislation was passed and the definitions changed and evolved. Some examples are the Federal Water Pollution Control Act of 1948, as amended as the CWA in 1972, 1975 and 1987; the Clean Air Act of 1963 and National Environmental Protection Act of 1969.
In November 1986, after much case law, an actual definition of "navigable in-fact waters" and/or "waters of the United States" was developed and adopted in the Clean Water Act. It applies to the jurisdictional limits and the authority of the Corps of Engineers under the act. The Clean Water Act has evolved with the times and this is at the heart of the issues being considered at the Supreme Court.
Basically, under the definitions, the Corps takes jurisdiction over eight types of waters in the United States, including wetlands. This definition and 32-plus years of case law define a procedure whereby a knowledgeable scientist can and does define waters of the United?States, including wetlands, as opposed to upland boundaries. Wetlands are like filtering sponges. Wetlands are those places between land and water with important watershed functions to treat and improve water quality and provide sediment-nutrient retention, natural flood attenuation, recreation and wildlife habitats.
The definitions are clear that adjacent wetlands, or wetlands adjacent to a tributary system are subject to regulations under the Clean Water Act. Adjacent is defined as "bordering, contiguous, or neighboring" and that wetlands separated from other waters of the United States by the man-made dikes or barriers, natural river berms, beach dunes, and the like are "adjacent wetlands."
Wetlands are often miles away from the nearest big body of water or navigable water (and in the case being heard by the Supreme Court, it is undisputed that the water from those wetlands discharges into creeks and rivers that are tributaries to the Great Lakes). The argument is that the Corps' jurisdiction and the permit process is a usurpation of state's right, and if that is what Congress intended, it's unconstitutional.
Don't misunderstand, this is not a state-vs.-federal government issue as reportedly the states largely support the federal government in this case. In the cases before the court, there is no question that the properties were subject to local, state and federal land use regulations. Rather, it appears that the owners didn't agree with the regulatory policies and decided the broader Clean Water Act definition and its regulatory program was unconstitutional due to the ambiguity between the Congressional intent in the law and how the various case law and Corps of Engineers and EPA policies and regulatory programs are used to implement the Clean Water Act at the public (or ground) level.
What actually seems to be at issue is the right of a private property owner to conduct activities on his/her property without regard to how those activities affect adjacent property owners, the public and the various local, state and federal jurisdictions. The questions before the court may determine whether the greater public will collectively pay for environmental protection whatever that definition is ultimately defined as. Do we as the greater public collectively buy all properties with environmental constraints? Can we afford to? Can we afford not to?
These issues and ones like these are not new. For years, we've been able to debate the greater public interest surrounding global environmental issues.
Depending on the Supreme Court decision, we may be faced with this larger decision very soon. We wonder if we are ready to debate, negotiate, process and implement a local and statewide land-use solution based on water quality and flood standards we don't control?
Lori Carpenter is president of Huffman & Carpenter, Inc., a Reno consulting firm that specializes in wetland regulatory issues and hydrology consultants. She has 17 years of experience in permitting related to the Clean Water Act. Patrick Whitaker is an environmental and regulatory scientist with Huffman & Carpenter, Inc., specializing in hydric soils related to wetland delineations.
