ALBUQUERQUE, N.M. — Recent Supreme Court decisions that limit the scope
of the Clean Water Act in protecting wetlands — and new guidelines that
implement those decisions — could be particularly damaging to the arid
West, water experts said at a conference here this week.
For some state regulators, that means more active state control over
waterways may be needed. "We're going to have to figure out how to fill
these gaps, because we can no longer depend on the federal government,"
said Marcy Leavitt, chief of the New Mexico Surface Water Quality
Bureau, speaking this week at a water law conference organized by
Continuing Legal Education.
In the 2001 decision Solid Waste Agency of Northern Cook
County (SWANCC) v. U.S. Army Corps of Engineers, the court prohibited
the government from using migratory bird protections to protect
wetlands "isolated" from navigable waters. The court followed last year
with a 4-1-4 ruling that confounded regulators in the joint cases of
Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers.
Under the Clean Water Act, the corps has regulatory
jurisdiction over "navigable" waters of the United States, and anyone
who wishes to discharge into a water that meets that definition is
required to get a permit from the corps or EPA, depending on the type
of permit. Last month, the corps and EPA issued guidance designed to
interpret and implement the Supreme Court rulings.
The effect of the rulings and guidelines is a limiting of the
federal government's jurisdiction over wetlands and streams. In
essence, under the rulings, the corps does not have jurisdiction over
wetlands that are not adjacent to navigable waters.
Furthermore, a tributary of a navigable waterway has to be
relatively permanent to be regulated. Incorporating the opinion of
Justice Anthony Kennedy, the guidelines specify that the corps and EPA
would have to determine on a case-by-case basis whether a non-navigable
waterway had a "significant nexus" to a navigable waterway.
While the rulings and guidelines affect wetlands and streams
across the country, they are of special concern to state regulators in
the arid West, where streams tend to dry up during certain times of the
year and where wetlands, such as playa lakes, are often not connected
to a "navigable" waterway.
"I think there’s a fair amount of concern about how
jurisdiction will be determined in the arid West," said Jeanne Christie
of the Association of State Wetland Managers. Christie said that she
believes the new guidance does provide for federal oversight of
non-permanent streams under Kennedy's "nexus" test, regulators may not
have enough data to make a well-informed determination on whether the
waters in question fall under the reach of the Clean Water Act.
"The concern is that even if it might be within the ability of
the guidance to reach those areas, as far as administration goes and
finding data and information in a timely manner to support that
decision, that may not be doable," she said.
Intermittent streams
According to information from the National Hydrology Dataset,
about 60 percent of the nation's streams are nonpermanent. In arid
Western states like Arizona, Utah and New Mexico, between 80 and 95
percent of streams do not flow year-round.
In New Mexico, for example, 99,000 miles of streams — about 92
percent — are nonperennial, according to the New Mexico Environment
Department's Surface Water Quality Bureau. Furthermore, 20 percent of
the state is covered by closed basins, which means they are
hydrologically isolated and not connected to a navigable waterway.
Since few New Mexico waterways meet the court's narrow
definition of a "navigable" waterway, much of the state's surface water
would be unprotected under the Clean Water Act, said New Mexico
Environment Department Secretary Ron Curry.
"As the man charged by Governor Richardson with protecting New
Mexico's limited water supply from pollution, I can tell you that
basing the decision on what water deserves to be clean on whether you
can float a boat on it is an extremely limited view," Curry said during
a hearing before the House Transportation and Infrastructure Committee
July 17. "Quite simply, it's lunacy. There are times during summer
months when you can't even float a boat down the mighty Rio Grande, New
Mexico's main surface water resource."
Leavitt said the state may seek legislation to ensure that it
can adequately protect streams and the state's 700,000 acres of
wetlands.
Western states that do have their own laws governing
protection of waterways appear to be less vulnerable to the effects of
the rulings and recent guidance. In Utah, for instance, the Utah Water
Quality Act defines most waterways as "waters of the state," including
streams, lakes, ponds, marshes, wells, springs, irrigation systems,
drainage systems, and all other bodies or accumulations of water,
surface and underground, natural or artificial, public or private."
Since Utah has been delegated the authority to issue permits
under the Clean Water Act — an authority that has not yet been extended
to New Mexico — it will continue to regulate most waters in the state,
said John Whitehead, assistant director of the Utah Division of Water
Quality.
"It's pretty broad," Whitehead said. "At this point, unless our statute is revised, I think Utah is not dramatically affected."
However, under state law, state statutes cannot be more
stringent than federal statutes, and the state Legislature could, in
theory, attempt to restrict the scope of the Utah Water Quality Act to
mirror the Supreme Court's new interpretation of the federal law.
Erik Schlenker-Goodrich, an attorney with the Western
Environmental Law Center, said he finds hope in new legislation now
under consideration in Congress that would restore much of the CWA's
previous reach. The Clean Water Restoration Act, H.R. 2421, seeks to
replace the term "navigable waters of the United States" with "waters
of the United States," which re-establishes the commonly held
understanding of the CWA prior to the Supreme Court rulings, according
to the bill's authors (E&E Daily, July 26).
The legislation also includes a clause that clarifies that
existing CWA exemptions, including those for agriculture, mining and
silviculture, will remain in place.
"This could be resolved at the federal level," Schlenker-Goodrich said.
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