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Columnists
Regulatory
Developments
Michael
C. Ford Attorney Polsinelli
Shughart, PC
The
Long, Hot Summer for Clean Water Law
Aug/Sept
2006
It’s
been a watershed summer already for the Clean Water Act regulatory
program at both the state and national level. Here’s a quick review of
the key recent developments, some thoughts on what the rest of the
summer might bring, and my recommendations for your summer reading list.
AZPDES
Primacy
Another
chapter in the AZPDES primacy saga ended on June 8, 2006, when the Ninth
Circuit denied (9-6) the petition for rehearing in the Defenders of
Wildlife v EPA case that had been filed by EPA, Arizona and the
industry group intervenors.1
The denial order is by no means blasé boilerplate, however, as several
judges filed opinions (a somewhat unusual practice), including an
"impassioned dissent … accusing the panel majority of all manner
of judicial perfidy" by Judge Kozniski. This dissent accuses the
majority of being "tone deaf" to Supreme Court precedent;
"trampl[ing] all over the Fish and Wildlife Service’s …
reasonable interpretation of the ESA"; "deliberately creat[ing]
a square inter-circuit conflict with the Fifth and D.C. Circuits";
and "ignor[ing] at least six prior opinions of our own court."
Judge Berzon, the author of the 2005 decision to vacate, also filed a
rebuttal to Kozinski’s "baseless attacks" "to try to
set the record straight." These companion pieces are a great read -
real page turners which I picked up and couldn’t put down!
While
the denial order left standing last summer’s blockbuster decision
vacating AZPDES primacy (2-1) on Endangered Species Act grounds,2
EPA, Arizona and the industry intervenors subsequently filed motions to
stay the court’s mandate (delay the effective date of the decision
vacating the AZPDES program), which the Ninth Circuit granted on June
15, 2006. The stay is for 90 days to allow the agencies/intervenors to
petition for Supreme Court review. If granted, the stay will continue
until the Supreme Court decides the case. We should know by the end of
the summer whether the Supreme Court will hear the case.
Extent
of CWA Jurisdiction
On
June 19, 2006, the Supreme Court released a shocking sequel to its
series of CWA "navigable water" jurisdiction cases entitled Rapanos
v. U.S.3
The exhaustive, complex decision includes 5 opinions, consumes over 100
pages, and will be the topic of scholarly articles for years to come.
The Cliffs Notes version is that while it is clear the Corps’
"hydrologic connection" test for jurisdiction was invalidated,
the appropriate jurisdictional criteria remain unclear, since there was
no majority opinion. The Scalia plurality (4 Justices) would allow CWA
jurisdiction only over
relatively
permanent, standing or continuously flowing bodies of water
"forming geographic features" that are described in ordinary
parlance as "streams[,] . . . oceans, rivers [and] lakes."
The phrase does not include channels through which water flows
intermittently or ephemerally, or channels that periodically provide
drainage for rainfall.4
Scalia’s
opinion would obviously significantly curtail CWA jurisdiction,
particularly in arid states such as Arizona. Kennedy’s concurring
opinion concludes that waters that have a "significant nexus"
to navigable-in-fact waters are jurisdictional. The extent of the
limiting impact on CWA jurisdiction of Kennedy’s effects-focused test
is uncertain due to its dependence on case-by-case factors and a
subjective, eye-of-the-beholder type criteria. The appropriate analysis
will have to be sorted out by the lower courts and the agencies.
The
lower courts did not take long to weigh in. On June 28, a district court
in Texas applied Rapanos to a case involving the discharge of oil
to an intermittent, unnamed tributary 40 miles and two intermittent
tributaries removed from a traditionally navigable water.5
As the first post-Rapanos decision, it is a must-read. To spoil
the ending, the court dismissed the government’s complaint against
Chevron. The court looked to both Scalia’s opinion and Kennedy’s
opinion, which it characterized as ambiguous, as well as precedent from
the Fifth Circuit (where there is significant jurisdiction-limiting
precedent), and concluded that the intermittent tributaries at issues
were not jurisdictional, the discharge at issue did not reach
jurisdictional waters, and therefore that there was no violation of the
CWA.
The
Corps then announced on July 5, 2006, its intent to issue joint guidance
with EPA clarifying the agency’s position on CWA jurisdiction in light
of Rapanos. This guidance may well be out before August, adding
to what has already been a long, hot summer for CWA regulation.
Footnotes:
1
Available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/89A7E2DFD9B04377882571860077DDDF/$file/0371439o.pdf?openelement.
2
Available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BD7EC45CE5FFA89B88257065005746B3/$file/0371439.pdf?openelement.
3
126 S. Ct. 2208, 2006 WL 1667087 (available at http://www.supremecourtus.gov/opinions/05pdf/04-1034.pdf.)
4
Id. at *13 (citations omitted).
5
U.S. v. Chevron, available at http://rapanos.typepad.com/chevron.pdf.
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