Editors' Summary

Editors' Summary: The Supreme Court's new federalism has struck its strongest blows so far on the CWA. Last summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act's protection of wetlands and other small waterways--five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the CWA been the Court's favorite target? One reason is that the statute was fatally flawed when enacted.

Editors' Summary: This spring, the U.S. Supreme Court will be deciding two very important wetlands cases. In both, the Court is asked to decide whether the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency exceeded the bounds of the CWA by claiming jurisdiction over certain wetlands or, alternatively, whether such jurisdiction violates the Commerce Clause of the U.S. Constitution.

I. Introduction and Overview

Editors' Summary

The Environmental Council of the States (ECOS) recently proposed that Clean Water Act §404 be amended to "remove the barriers" to state assumption of the §404 program. ECOS' specific proposals are unnecessary, unwise, and unworkable. The best and most reliable approach for protecting aquatic resources involves a vigorous federal §404 program along with effective state use of state §401 water quality certifications, Coastal Zone Management Act consistency certifications, and supplemental state law to fill in any gaps in the federal program.

Editor's Summary: The U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) has certainly caused much confusion about the exact contours of wetlands jurisdiction. In this Article, Jack Kerns reviews the circuit and district court decisions that followed SWANCC and their development of the "hydrologic connection" test. He then asks whether groundwater can serve as a jurisdictional basis for wetlands as "waters of the United States." This issue is fraught with uncertainty, as groundwater cannot be readily observed.

In my capacity as Director of the U.S. Environmental Protection Agency's (EPA's) Wetlands program, I oversee efforts to enhance state and tribal wetlands programs, including state and tribal assumption of the Clean Water Act (CWA) §404 program (§404 Assumption). As such, I feel it is my responsibility to clarify the requirements, oversight, and benefits of §404 Assumption in response to Lance Wood's Article in the March 2009 issue of the Environmental Law Reporter's News & Analysis.

The Clean Water Act (CWA) prohibits "the discharge of any pollutant" into waters of the United States, except as otherwise authorized under the Act. A "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." The national pollutant discharge elimination system (NPDES) permit program regulates point source discharges of pollutants into waters of the United States. The issue of whether water transfers are subject to NPDES permit requirements has been surrounded by considerable controversy.

Managing and controlling stormwater and other "wet weather" discharges presents unique challenges, far different from the management and control of industrial and municipal wastewater streams. Wet weather discharges are periodic and unpredictable. They can contain varying concentrations and types of pollutants. The wet weather discharger can rarely know with any certainty when or how much water will need to be managed. The source of pollutants in these weather-related discharges is often difficult to discern, and sampling wet weather discharges is a challenge.

In traditional administrative law, agencies pass rules and courts review them. But what if agencies stopped acting by rule and started leading by example? The federal response to agricultural water pollution offers a case study in how this increasingly popular form of administration can work, by regulating not through rule, but through suggestion--specifically suggestion via best practices.