Carabell and Rapanos Rulings:  How Will They Change the CWA?

As part of the requirements of the Water Leadership Program, Ms. Molly MacDonald, program participant and intern for the National Council of Farmer Cooperatives (NCFC), interviewed Ms. Ann R. Klee, General Counsel to the United States Environmental Protection Agency (EPA).   Ms. Klee, spoke about the preliminary implications of the Carabell/Rapanos Supreme Court decision for the EPA.  Below is the transcript of the July 26, 2006 interview 2006.

MOLLY MACDONLD: Will the Carabell/Rapanos decision result in any operational changes in the way EPA administers the Clean Water Act?

ANN KLEE:  The Bush Administration remains committed to protecting wetlands to the maximum extent allowable under the law.  In fact, the President established a goal in 2004 of restoring, creating or enhancing three million acres of wetlands by 2009; in the last 2 years alone, we have restored, created or enhanced over 1.6 million acres, so we are over halfway to meeting that goal.  In terms of defining specific operational changes, we are still evaluating the Rapanos decision,  so we will be looking at what the impact of the decision will be for the Agency’s programs.

MOLLY MACDONLD: With this decision, the regulated community hoped to be given some clarity as to the boundaries of “navigable waters” and wetland designation; do you think that this clarity was provided by Carabell/Rapanos decision?

ANN KLEE:  I think after that decision, what we can safely say is that Riverside Bayview is still good law, and that SWANCC is still good law.  So, what the Court was telling us here is that: we told you that wetlands that are adjacent to open waters where there is no clear demarcation, those are clearly protected.  That’s the Riverside Bayview decision.  The true isolated wetlands that were at issue in SWANCC are clearly out.  I think that the Rapanos decision was trying to address some of the in-between situations, and I don’t think it gave very clear guidance.   The Agencies, both the Corps and EPA, are going to have to work through what it means.  But, I think what you can extract from the decision are some guiding principles.  For us, the guiding principles are that we can assert, and continue to assert, jurisdiction over wetlands that would meet either the Scalia test, waters that are either relatively permanent in flow or wetlands that have a continuous surface flow adjacent to those waters, or the Kennedy test, wetlands and waters that have a significant nexus to navigable waters. 

MOLLY MACDONLD: So both of them are acceptable, you are able to use either?

ANN KLEE:  Under Supreme Court precedent, we think that you can.  Where there isn’t a very clear holding, as in the Rapanos decision, I think that Supreme Court precedent clearly allows us to extract principles or tests that would garner five, any five votes of any five justices.  Under that approach, either the Kennedy test or the Scalia test is acceptable. 

MOLLY MACDONLD: The decision included two very different and competing opinions, which opinion will be more beneficial in aiding the EPA and Corps to construct the “outer bound” which was requested of them?

ANN KLEE:  Well, I would say, what the Supreme Court did, is really gave three decisions, three approaches.  You had the Scalia approach, which was relatively permanent flowing waters or the wetlands that are adjacent to those waters --  not just adjacent, but wetlands that have a continuous surface flow to those relatively permanent waters.  Justice Scalia also clearly envisioned that jurisdiction could exist over seasonally flowing waters.  You have Justice Kennedy with the significant nexus test.  And you also have the Justice Stevens block  that would assert jurisdiction over both types of waters, and then probably some beyond that.  Where you get five or more votes, though, is either with the Scalia test or with the Kennedy test.  You don’t get five votes with the Stephens block, which is why they were in dissent.  Our view is that as long as you meet either of the two tests, you are appropriately asserting jurisdiction.

MOLLY MACDONLD: Does the EPA plan to come up with any interim guidance for the regulated community in response to the decision?

ANN KLEE:  Right after the decision was issued, we issued a very short paragraph memo to all of our field offices, regional offices, alerting them to the fact that the decision had been issued and that to the extent that they could, they should defer taking action with respect to asserting jurisdiction over adjacent wetlands until we had a little bit more time to figure our what the decision meant.  We indicated at that time that we would be working on interim guidance.  We have been working with the Corps of Engineers on interim guidance and hope to be getting it out shortly. 

MOLLY MACDONLD: And to wrap up, in the meantime, what would be your advice to a member of the regulated community who is unsure of their course of action based on this new decision? 

ANN KLEE:  It is certainly a difficult situation to be in.   I would contact the local Corps of Engineers district office, or the local EPA office, and try to work through the issues with them.  If a landowner is in a situation where he or she has a wetland with a continuous surface flow, adjacent to a relatively permanent flowing water, I think that is going to be an easier situation than a wetland that may be adjacent to a non-navigable tributary.  In that case, I would urge them to work closely with the Corps and EPA to try to evaluate whether or not that wetland has a significant nexus to a downstream, navigable-in-fact water.