Confused about clean water? Tell it to the judge

Alaska's placer mining industry has been almost wiped out by the Clean Water Act. In addition, every surface and subsurface lode mining operation has been forced to go through the dreaded process of getting a "404" dredge and fill permit from the Army Corps of Engineers. From Kensington to Pogo, access roads have been engineered and redesigned at great cost to minimize the impact on Alaska's "wetlands," even where the road is miles away from any water body.

Since 1972, when the Federal Water Pollution Control Act Amendments were passed, Americans have been laboring to reconcile themselves, frequently unsuccessfully, to the action-forcing provisions of this unprecedented ingérence into the sanctity of property rights.

Millions of dollars have been paid in criminal and civil fines.

While no one criticizes the benefits of clean water or the progress that has been made in making "navigable waters" (defined as "the waters of the United States") more swimmable and fishable, the human cost in achieving these objectives has been monumental.

The way the Clean Water Act is written, if you were to brush your teeth in a mountain stream, you literally would be at risk of a severe penalty.

What constitutes navigable waters?

A significant part of the Clean Water Act problem relates to the question of what constitutes navigable waters. Under the statute, the Army Corps of Engineers has the responsibility for permitting the disposal of dredged or fill material into the navigable waters. The Corps has interpreted this mandate to include wetlands (i.e., swamps, bogs, muskegs, permafrost and the like); and wetlands are whatever the Corps says they are. Because of the presence of permafrost, over half of the state of Alaska comes within the definition.

Until recently, there was no requirement that the water from wetlands flow into any other body of water; it just had to be within about 20 miles of water that does flow into other water to bring it within the scope of the Corps' perception of its jurisdiction.

For a while, the Corps took the position that even isolated water bodies were navigable waters if migratory waterfowl landed on them. The United States Supreme Court drew the line at that, but the question of where the limits were with regard to wetlands remained open.

On June 19 of this year, the Supreme Court of the United States handed down a decision (Rapanos v. United States) that addressed this question. In a split decision, the court remanded to the Sixth Circuit for further consideration two cases upholding the imposition of civil and criminal penalties on individuals who had filled wetlands on their private property in furtherance of developments to be placed thereon.

No consensus from Supreme Court; case remanded

Five of the court's nine Justices filed opinions. No single opinion garnered the majority of the court, but there was a majority in favor of sending the cases back to the Sixth Circuit. Notably, Justice Scalia entered a detailed opinion in which Justices Thomas, Roberts and Alioto joined. Scalia detailed the burdens and inequities of the Corps' broad brush approach to regulation, rightly noting that its perception of its jurisdiction seemingly knows no bounds. Scalia was of the view that in order to be navigable waters, wetlands must have at least some surface connection to a river or stream, etc. and that a hydrological or intermittent connection was not sufficient.

Justice Kennedy, who concurred with the Scalia result, took the position that a surface connection was not required under the statute, but that a "significant nexus" was; therefore, he carved out a standard somewhat less restrictive for the Corps to follow, but agreed that the Corps' interpretation of its own jurisdiction had gone too far.

Chief Justice Roberts opined that the failure of the plurality to give a clear direction to the lower courts would lead to further uncertainty and litigation, especially if the Corps did not develop clear regulations defining its jurisdictional reach.

Justice Stevens filed a dissent in which Justices Breyer, Ginsberg and Souter joined. Stevens pointed out that the Corps, in contrast to the Congress or the Courts, possesses unique technical expertise to determine what constitutes wetlands and whether pollutants located at a given site would derogate from the quality of the waters of the United States.

Stevens cleaved to the view that executive agencies are entitled to substantial deference in interpreting the statutes they are charged with enforcing, and that so long as their interpretation is rational, it should be upheld. Stevens further concluded that the lower courts, in interpreting this ménage, should rule in favor of the Corps if either of the standards articulated by the plurality (surface connection of substantial nexus) were met. Justice Breyer filed a separate dissenting opinion stressing the objective of the Clean Water Act in cleaning up the environment.

What does the law require?

The upshot of this opinion is to leave miners, developers and litigators alike in a state of confusion as to what the law requires. It seems self-evident that in order for a person to comply with the requirements of any law, the meaning of that law should be readily understandable. The Army Corps of Engineers, however, reserves the right to make that judgment on a case-by-case basis. It is as if the State Troopers reserved the right to determine what the speed limit should be for each individual car that passes by.

The Corps should promulgate broad, generally applicable and readily understandable rules that anyone can follow when developing a mine or other private property. Going to the government for ad hoc decision-making is an unjustifiable burden.

When the Corps was previously criticized by the U.S. Supreme Court for its attempt to regulate isolated water bodies, it had the chance to avoid further backlash by amending its regulations. It elected not to do so. Now the Corps has been hauled before the Supreme Court for further instruction. This opinion is an even clearer mandate in for the Corps to revisit its practices and policies.