On the same day the Bush administration announced it would not issue new wetlands regulations, the U.S. Court of Appeals for the Fifth Circuit added confusion to the issue by defying two of its sister circuits, holding that isolated waterways do not qualify as “navigable waters” under the Clean Water Act.
In 2001 the U.S. Supreme Court ruled in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (commonly referred to as the SWANCC decision) that “navigable waters” subject to the Clean Water Act do not include isolated ponds and mudflats unconnected to navigable waterways except by their potential use by migratory birds.
Since the SWANCC decision, two federal appellate courts have narrowly interpreted the Supreme Court’s ruling and refused to nullify Clean Water Act coverage for other isolated wetlands. The Fourth and Sixth Circuits each ruled the Army Corps of Engineers could impose Clean Water Act regulations on man-made drainage ditches.
Fifth Circuit Disagrees
However, on December 16, 2003, the Fifth Circuit ruled in United States v. Needham that the Fourth and Sixth Circuits erred in their “expansive interpretation” of EPA powers to regulate isolated waterways. According to the court, “navigable waters” do not include “all waters, excluding groundwater, that have any hydrological connection with ‘navigable waters.'”
EPA’s expansive interpretation of its powers is untenable, asserted the Fifth Circuit, because the Clean Water Act and related laws “are not so broad as to permit the federal government to impose regulations over ‘tributaries’ that are neither themselves navigable nor truly adjacent to ‘navigable waters.'”
Accordingly, ruled the Fifth Circuit, the federal government “may not simply impose regulations over puddles, sewers, roadside ditches, and the like.”
This clash among the appellate courts renders it likely that the U.S. Supreme Court will resolve the issue sometime in the near future.
“Landowners, home builders, developers, and regulatory field officials have no coherent guideposts from the Bush administration on the limits of federal regulation under the Clean Water Act,” said Kent Conine, president of the National Association of Home Builders. “It’s time for the Supreme Court to step in and confirm that puddles and ditches are not navigable waters so that we are not needlessly increasing the area we have to regulate with finite budgetary resources.
“What we learned from the Needham decision is that if the Deatons’ land were in Texas, their ditch would not have been regulated by the federal government,” added Conine. “Without action from the EPA, the Supreme Court is the only realistic forum that can resolve the question of jurisdiction and take landowners like the Deatons out of regulatory limbo, and we urge the justices to take the case.”
James M. Taylor is managing editor of Environment & Climate News. His email address is [email protected].