Justice Kennedy and Ecosystem Services: A Functional Approach to Clean Water Act Jurisdiction after Rapanos

Article excerpt

I. INTRODUCTION
II. ECOSYSTEM SERVICES AND THE PRESERVATION OF AQUATIC ECOSYSTEMS
      UNDER THE CLEAN WATER ACT
      A. Ecosystem Services in General
      B. Ecosystem Services from Aquatic Ecosystems and Wetlands
      C. The Need for an Ecosystem Services Rhetoric
III. CLEAN WATER ACT JURISDICTION, OLD AND NEW
      A. Statutory Provisions
      B. Determining Jurisdiction, Old Style: A Formalistic Approach
           1. The Classificatory Approach to Clean Water Act
                Jurisdiction
           2. The Occasional Wetland Deviation
      C. The Supreme Court and a Functional Approach to Clean Water Act
           Jurisdiction
           1. United States v. Riverside Bayview Homes, Inc.
           2. Solid Waste Agency of Northern Cook County v. U.S. Army
                Corps of Engineers
           3. Rapanos v. United States
IV. JUSTICE KENNEDY'S RAPANOS TEST AND ECOSYSTEM SERVICES: THE
      EXAMPLE OF UNITED STATES V. CUNDIFF
      A. Lower Courts and the Rapanos Split: The Ascendancy of Justice
           Kennedy's Significant Nexus Test
      B. The Agencies' 2007 Rapanos Guidance
      C. United States v. Cundiff
      D. A Difference that Makes a Difference
V. CONCLUSION

I. INTRODUCTION

The Federal Water Pollution Control Act (FWPCA), (1) better known as the Clean Water Act, sets out "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (2) As such, the Act would seem to focus intensely on aquatic ecosystem integrity and function. Nevertheless, implementation of the Act has not emphasized this eco-centric perspective on water quality regulation, particularly when courts consider the question of the federal government's authority to regulate particular discharges into particular waters.

Indeed, at least as it has been implemented since 1972, the Clean Water Act has been far more concerned about delineating and regulating the uses to which humans put the nation's waters than about preserving ecosystem function per se. As one court has emphasized, "[t]he cornerstone of the CWA regulatory scheme is Section 301, 33 U.S.C. [section] 1311, which prohibits the discharge of pollutants into navigable waters except when in compliance with various provisions of the Act" (3)--not the Act's scattered acknowledgements of aquatic ecosystems and ecosystem function. Moreover, as regulators put the Act's basic prohibition into practice, their implementation has focused primarily on classification--that is, on identifying and regulating qualifying "discharges" into various categories of "navigable waters." (4)

Nevertheless, Congress's decision to regulate pollutant discharges did acknowledge that aquatic ecosystems' ability to assimilate various kinds of pollutants is limited. By 1972, the year that Congress comprehensively amended the FWPCA to create the contemporary structure of the Clean Water Act, it had become clear that waters can become over-polluted, to the point of catching fire or posing public health threats. (5) In other words, pollution could affect ecosystem function in ways that detrimentally impacted human needs for and uses of waterways. As such, even though one must acknowledge the Act's lack of a fully developed ecosystem approach to water management, it is still fair to discuss the Clean Water Act's regulatory programs in terms of their ability to restore and protect certain aquatic ecosystem services.

As a term, "ecosystem services" acknowledges that functional ecosystems provide for human needs in ways that have real economic value. (6) Pollutant dilution, assimilation, sequestration, and breakdown are some of the ecosystem services that aquatic ecosystems provide, (7) and Clean Water Act regulation serves in part to ensure that human wastes do not overwhelm aquatic ecosystems' capacity to provide these services. Moreover, the value of these ecosystem services becomes obvious from the costs of technological substitutes: secondary or tertiary treatment for sewage, (8) and effluent control technologies for most other types of waste discharges. …