The ‘Bafflement’ Standard: (Re)Interpreting the Clean Water Act

Last month, the Obama Administration urged Congress to resolve the uncertainty in the protection of the nation’s waters and wetlands under the Clean Water Act (CWA).  In a letter signed by the heads of several agencies, the Administration noted the confusion, delay, and even neglect in protecting the nation’s waters in the aftermath of two Supreme Court decisions: SWANCC and Rapanos.  Reports from the EPA and the EPA Inspector General have documented the impacts – 20 million acres of wetlands and isolated waters are no longer protected (subscription required).

At issue is the reach of the Clean Water Act, passed in 1972 with the lofty mandate of restoring the integrity of the nation’s waters and eliminating pollution by 1985.  Although the latter goal is still out of sight, significant progress has been made in restoring the quality of the nation’s water.  Under separate provisions of the Act, the EPA and the ACOE have jurisdiction over “navigable waters,” defined as “waters of the United States.”  Those five words have generated tomes of commentary, leaving developers and environmentalists alike writhing in confusion.

By the late 1970’s, EPA and ACOE had interpreted the “waters of the United States” broadly, covering much of the aquatic system.  A set of Supreme Court decisions narrowed this protection, though, leaving the nation’s wetlands regulatory program in disarray.  The 2001 Supreme Court opinion in SWANCC rejected CWA jurisdiction over certain isolated, sometimes seasonal ponds that are wholly intrastate and serve as migratory bird habitat.  In this case, a waste disposal operator wanted to turn an abandoned sand and gravel pit, which had become a stopping ground for migratory birds, into a waste disposal site.  The ACOE refused to issue a permit to fill the wetlands. 

Clean Water Act jurisdiction was further restricted by a 4-1-4 Supreme Court in Rapanos.  This case involved wetlands that were connected, although distantly, to navigable waters by both natural, perennial rivers and by engineered, intermittent conveyances.  Three main opinions were issued by Justice Scalia, who favored narrow coverage of waters and wetlands; by Justice Kennedy, who articulated a “significant nexus” test that requires highly specific technical analysis; and by Justice Stevens, who dissented and favored broad protections.  Because no opinion constituted a majority, lower courts have taken different approaches – some have said that Justice Kennedy’s test mostly applies, some have said that Justice Kennedy’s test only applies, and some have said that either Justice Scalia’s or Justice Kennedy’s test applies.  Subsequent EPA guidance has not helped.

As noted by the Sixth Circuit, “In its short life, Rapanos has indeed satisfied any ‘bafflement’ requirement.”  (U.S. v. Cundiff, 555 F.3d 200, 208 (6th Cir. 2009)).  In the meantime, protection of the nation’s wetlands and waters has languished.

The Obama Administration’s letter calls for a rescue from this confusion by extending broader protection for the nation’s waters; clarifying what waters and wetlands are protected to enable prompt enforcement actions by federal agencies and to avoid time- and resource-consuming analyses; integrating Clean Water Act requirements and agricultural conservation programs administered by the USDA; and converting accepted practices into statutory mandates.  The letter compliments Senator Feingold’s proposed Clean Water Restoration Act of 2009, which broadly defines the “waters of the United States” as “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing.”

Wetlands are the kidneys of the Earth’s body, filtering toxics, absorbing nutrients, and disposing of waste, among many other vital functions.  And the nearly 500 CWA enforcement cases that have been dropped as a result of post-Rapanos uncertainty?  They are acquired diseases, potent enough to send the body into kidney failure – or, at the very least, into needing dialysis.  The Obama Administration’s letter, urging clarification of this confusion, is much needed preventative treatment.