In its first-ever U.S. Supreme Court brief filed Feb. 21, the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) relies heavily on comments submitted in 2003 by it and 39 states to the EPA and Army Corps of Engineers, in response to an “Advance Notice of Proposed Rule Making” that looked to change jurisdictional reach of the Clean Water Act (CWA) - see: www.asiwpca.org/statecomments.htm.
Reasoning for the challenges in the two cases before the court, Rapanos and Carabell, comes out of 2001 CWA jurisdiction case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, where the Supreme Court invalidated the Migratory Bird Rule as the exclusive basis for applicability. A vast majority of states support a narrow interpretation of this decision and believe the Corps and EPA should retain longstanding federal protections for intrastate non-navigable waters and adjacent wetlands by invoking other jurisdictional bases.
The statutory term at issue in this case, “waters of the United States,” is integral not just to the CWA §404 dredge and fill provisions, but to jurisdictional reach of all clean water programs under the act. This definition is the lynchpin for state water quality standards under §302 and §303, national performance standards under §306, toxic and pretreatment standards under §307, oil and hazardous substance liability under §311, aquaculture standards under §318, state water quality certifications under §401, and national pollution discharge permitting requirements under section §402.
Why should the industrial community support the present day jurisdictional definition for “waters of the United States” over a more limited definition one presented by the Rapanos and Carabell briefs?
First, there’s over 30 years of case law offering a level of legal certainty industry can rely on for day-to-day operations. As operations expand or processes changes, there’s little doubt about which CWA regulations will be applied and how they should be managed. Likewise, the federal backstop has created a consistent national picture for what the minimum level of regulatory requirements will be and what activities are covered. A patchwork of jurisdictional definitions from county to county and state to state would create a very different climate for doing business.
Reduced CWA jurisdictional coverage could also have unintended consequences for companies that require relatively clean water for industrial processes. Where historically an industry could rely on the local waterbody as a clean source, a possible degradation in water quality could increase costs for those companies. It’s also completely plausible a jurisdictional change may weaken efforts to better identify nonpoint source contributors to water quality impairments. Finally, although rarely highlighted in the press, there are many industrial users of water that do wish to be good environmental stewards. There can be no doubt protecting headwater streams and other non-navigable tributaries from toxic discharges is vital to maintaining ecological integrity of navigable lakes and rivers.
Conclusion
While state regulators continue to support statutory provisons to preserve "the primary responsibilities and rights of States" to protect land and water resources, most states believe the longstanding federal protections are essential to protect vital state interests and preserve the effective state-federal partnership established by under the Clean Water Act. Shouldn't you?
About the Author: Roberta (Robbi) Savage recently stepped down as executive direcotr of the ASIWPCA, which she's headed since 1978. She's also president of America's Clean Water Foundation as well as creator of World Water Monitoring Day. For the latest regulatory new, see our "EPA Action" reports online.
