Academic journal article Harvard Law Review

III. Federal Statutes and Regulations: E. Review of Administrative Action

Academic journal article Harvard Law Review

III. Federal Statutes and Regulations: E. Review of Administrative Action

Article excerpt

1. Clean Water Act--Federal Jurisdiction over Navigable Waters.--Many of us think of swamps, bogs, and morasses as places to avoid. Yet in environmental law and policy, the subject of such zones, known as wetlands, is far from avoided. Indeed, debates abound over how wetlands should be regulated (1) and even defined. (2) Since Congress passed the Clean Water Act (3) (CWA) in 1972, the Supreme Court has attempted three times to divine where "water ends and land begins" (4) by assessing the scope of a program that requires landowners to obtain permits before filling "navigable waters." (5) In United States v. Riverside Bayview Homes, Inc., (6) the Court unanimously upheld the program's application to wetlands adjacent to navigable waters. (7) A decade and a half later, in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, (8) a bare majority struck down the so-called migratory bird rule by holding that the program did not apply to isolated ponds even though they were home to migratory birds. (9) Last Term, in Rapanos v. United States, (10) the Court divided 4-1-4 as it continued its effort to define the scope of federal authority over water. Because Justice Kennedy's concurrence exhibits a pragmatic approach to environmental law and policy, it is the soundest of the three methods showcased in Rapanos and is the one that future courts, regulators, and environmental advocates should embrace.

The CWA forbids the discharge of any pollutant into "navigable waters," (11) which the Act defines as "the waters of the United States." (12) An exception to this prohibition allows landowners to discharge dredged or fill material, considered pollutants under the Act's broad definition, (13) if the Army Corps of Engineers grants them a permit under section 404 of the Act. (14) The Corps has the authority to decide whether to grant permits and also sets permit-granting guidelines in collaboration with the EPA. (15) At first, the Corps interpreted the CWA narrowly, applying section 404 only to waters that were in fact navigable. (16) The Corps's interpretation broadened over time, however, eventually defining "waters of the United States" to include all interstate waters, all waters subject to use in interstate commerce, and "[a]ll other waters ... the use, degradation or destruction of which could affect interstate or foreign commerce." (17) The interpretation also included tributaries to these bodies and wetlands adjacent to them. (18) Shortly after the Court struck down the Corps's migratory bird rule in SWANCC, the Corps and the EPA issued an advance notice of proposed rulemaking. (19) After receiving over 130,000 comments, however, the Corps and the EPA decided not to issue any new rules. (20)

Rapanos consisted of two companion cases that arose from the development of four Michigan wetlands. John Rapanos owned three of the four properties, all of which lay near ditches or human-made drains and eventually flowed into either a river or Lake Huron. (21) In 1989, Rapanos began filling and clearing his land even after both the State and an independent consultant told him a permit was probably required. (22) Federal officials brought criminal charges and instituted a civil action. (23) The United States District Court for the Eastern District of Michigan upheld the Corps's exercise of jurisdiction, ruling that the filled areas constituted "waters of the United States" because they were adjacent to tributaries of navigable waters. (24) The Sixth Circuit affirmed, (25) holding that the CWA and its permit requirements extend to all wetlands that share a "hydrological connection" with actually navigable waters. (26)

The fourth property, from the companion case, was a wetland on which Keith and June Carabell wanted to build condominiums. (27) The land was abutted by a ditch, which connected to a drain that flowed into a creek and eventually into Lake St. Clair, (28) a 430-square-mile lake on the Michigan-Ontario border. …

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