1. National Waterways Conference Annual Meeting 2009 CLEAN WATER ACT Sean M. Sullivan Williams Mullen Presented by Kathleen Holmes Williams Mullen

2. History: Trends Less EPA Discretion Missed Deadlines Court Orders & Consent Decrees Increasing Focus on Toxics Loosening of Municipal Standards Increasing Penalties

3. Core Provisions: The 3 P’s Prohibition - § 301 Permits - §§ 402, 404 Penalties - § 309

4. 3 P’s: Prohibition: § 301(a) Any discharge of pollutants from a point source to navigable waters is prohibited, except as permitted

5. Navigable waters: waters of the United States, including the territorial seas Congress sought broadest possible definition under the Commerce Clause, beyond “traditionally navigable” waters.

6. 3 P’s: Permits National Pollutant Discharge Elimination System (NPDES) - § 402 §Federal-State “Partnership” §Federally designed §State administered, Federally supervised §5-year Permits §46 of 55 States have NPDES Programs

8. 3 P’s: Penalties Administrative Penalties, § 309(g) §Class I: $11,000/$27,500($12,000/$31,500) §Class II: $11,000/$137,500($12,000/$157,500) Civil Penalties, § 309(d) §Federal district courts §$27,500 per day per violation($31,500) Federal Civil Penalties Inflation Adjustment Act of 1990, note at 28 U.S.C. § 2461, 40 C.F.R. § 19.4(2000) 67 Fed. Reg. 41343 (June 18, 2002), eff. Aug. 19, 2002.

9. 3 P’s: Criminal Penalties Negligent violations $2,500 to $25,000 fine 1-year imprisonment Knowing violations $5,000 to $50,000 fine 3 years Knowing endangerment $250,000/$1,000,000 fine 15 years

10. United States v. Rapanos Supreme Court “clarifies” jurisdiction of Corps over wetlands

11. United States v. Rapanos 126 S.Ct. 2208 (2006)  Background – case involves two parcels of land containing wetlands that are “adjacent” to tributary of navigable water  Corps’ statutory jurisdiction extends to “navigable waters,” defined as “waters of the United States”

12. United States v. Rapanos  Background (cont’d)  Corps interprets its jurisdiction to include: Navigable water bodies Tributaries to navigable water bodies Wetlands adjacent to both

13. United States v. Rapanos Prior related case:  United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) Corps has jurisdiction over wetlands adjacent to navigable water bodies because of difficulty in determining where water ends and land begins Court reserved issue of Corps’ jurisdiction over wetlands adjacent to tributaries of navigable waters

14. United States v. Rapanos  Another prior related case:  Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001)  Isolated, abandoned gravel pit occasionally providing shelter to migratory birds is not “water of the United States” –Pit had no “significant nexus” to navigable waters

15. United States v. Rapanos The Decision  5-4 vote to remand case  Plurality Opinion (Scalia) – four votes Remand to apply proper understanding of “waters of the United States”

16. United States v. Rapanos The Plurality Opinion  Scalia, Roberts, Thomas, Alito  Notes Riverside Bayview left open status of wetlands in tributaries to navigable waters  Evaluates whether “waters of the United States” includes intermittently flowing tributaries Uses Webster’s Dictionary to define “waters”

17. United States v. Rapanos The Plurality Opinion (cont’d)  Corps’ jurisdiction over tributary and adjacent wetlands depends on regular water flow  Establishing that tributary empties into navigable water (when flow is present) not enough

18. United States v. Rapanos Justice Kennedy’s Concurrence  Focuses on whether there is “substantial nexus” between wetland and navigable water  Approach comes from court’s decision in SWANCC  J. Kennedy would have Corps evaluate effect of wetland on water quality in navigable water and base jurisdictional decision on existence of such an effect

19. United States v. Rapanos Justice Kennedy’s Concurrence (cont’d)  J. Kennedy’s approach rejected by plurality and dissent as unauthorized by the CWA

20. United States v. Rapanos Justice Stevens’ Dissent  Riverside Bayview controls outcome  Defers to Corps’ exercise of jurisdiction on Chevron grounds: Corps determined wetlands adjacent to tributaries of navigable waters can affect water quality of navigable waters This is reasonable basis for Corps to assume jurisdiction

21. United States v. Rapanos Justice Stevens’ Dissent (cont’d) –Advises the lower courts to find jurisdiction if either the Plurality test or the Kennedy test is satisfied.

22. The Aftermath of Rapanos “ It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will have to fee their way on a case-by-case basis.” Rapanos at 758 (Roberts, C.J. concurring).

23. The Aftermath of Rapanos The First Circuit –United States v. Johnson, 467 F.3d 56 (1st Cir. 2006). Court follows J. Stevens’ advice. If a wetland satisfies either the Plurality test or the Kennedy test, it is a water of the United States.

24. The Aftermath of Rapanos The Seventh Circuit –United States v. Gerke Excavating Co., 464 F.3d 723 (7th Cir. 2006). Court finds, as a practical matter, that the Kennedy test determines whether a wetland is falls under federal authority.

25. The Aftermath of Rapanos The First Circuit –U.S. v. Johnson, 467 F.3d 56 (1 st Cir. 2006) Act confers jurisdiction whenever either the plurality’s test or Justice Kennedy’s test is met

26. The Aftermath of Rapanos The Ninth Circuit –Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006). Court ruled that a pond was a water of the United States and subject to NPDES permitting jurisdiction. Decision relies on definition of wetland as being “areas inundated or saturated by surface or groundwater.” Court held that the pond was a wetland adjacent to a navigable water and that the pond had a significant nexus to the navigable water due to the hydrological connection between them.

27. The Aftermath of Rapanos The Ninth Circuit (cont’d) –San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir. 2007). Court finds that a pond adjacent to a navigable water is not a water of the United States. Court assumes that the pond is not a wetland because Baykeeper did not assert that it was one. Thus, the Court did not engage in the adjacent wetland analysis from City of Healdsburg.

28. The Aftermath of Rapanos The Second Circuit: –Simsbury-Avon Preservation Society v. Metacon Gun Club, 575 F.3d199 (2 nd Cir. 2009) Resource Conservation Recovery Act and CWA for polluting effect of lead shot Trial court dismissed RCRA and CWA claim -- SAPS did not provide sufficient evidence that area at edge of wetland was “navigable waters” Affirmed - no material issue of fact raised as to whether the berm at edge of range or entire shooting range was a jurisdictional wetland. Alternate affirmation - insufficient evidence to establish a “point source” and that “nonpoint sources” are left to state regulation

29. The Aftermath of Rapanos The Sixth Circuit –U.S. v. Cundiff, 555 F.3d 200 (February 2009) After determining that the plurality opinion and Justice Kennedy’s concurring opinion cannot be reconciled, the court concludes (with apparent relief) that “Here, jurisdiction is proper under both Justice Kennedy’s and the plurality’s tests (and thus also with the dissent’s)” Court noted that the Supreme Court had denied cert in 2 cases that presented the question of which test controlled. U.S. v. Robison (11 th Cir) and U.S. v. Lucas (5 th Cir.)

30. The Aftermath of Rapanos The Eleventh Circuit: –Friends of the Everglades v. South Florida Management District, 570 F.3d 1210 (June 2009) »noting sweeping intent of 1972 Senate Conference Report intending to extend application of the CWA to reach full constitutional limits under the Commerce Clause, but limiting review to specific statutory language before it

31. Agency Response June 2007 guidance from EPA and Department of the Army 66,000+ public comments Revised guidance issued December 2, 2008

32. Clean Water Restoration Act S.787 111 th Congress Title: A bill to amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States. Sponsor: Sen. Feingold, Russell D. [WI] (introduced 4/2/2009) 24 Cosponsors (24) Latest Major Action: 6/18/2009 Senate committee/subcommittee actions. Status: Committee on Environment and Public Works. Ordered to be reported with an amendment in the nature of a substitute favorably.

33. S. 787 – navigable waters Clean Water Restoration Act - Amends the Clean Water Act to replace the term "navigable waters" that are subject to such Act with the term "waters of the United States," defined to mean 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, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution.

34. S. 787 – other changes Declares that authority of the Secretary of the Army or the Administrator of the Environmental Protection Agency (EPA) under the provisions of the Clean Water Act is unchanged as related to discharges: (1) composed entirely of return flows from irrigated agriculture; (2) of stormwater runoff from certain oil, gas, and mining operations; (3) of dredged or fill materials resulting from limited activities (farming, conservation, state conservation practices); or (4) of dredged or fill materials for the farming uses, temporary mining management, temporary sedimentation basins

35. Conclusions –Higher evidentiary burdens –Anticipated constitutional challenges under proposed Restoration Act language

36. Questions? Sean Sullivan Williams Mullen ssullivan@williamsmullen.com