posted on Tuesday, June 27, 2006 9:23 AM
by
Tracy Davis
Circumscribed Clean Water Act Protections Unlikely to Affect Hydroelectric Regulation
In companion cases, Rapanos v. US and Carabell v. US, a divided Supreme Court cabined Clean Water Act (CWA) jurisdiction, holding that the Act's protections for navigable waters do not extend to four Michigan wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters. The CWA prohibits dumping dredged or fill material into “navigable waters” without a permit and defines “navigable waters” as “the waters of the United States, including the territorial seas,” The Corps of Engineers' regulations implementing this prohibition broadly read "navigable waters" to comprise" tributaries” of such waters, and wetlands “adjacent” to such waters and tributaries. The Supreme Court held that this construction went too far. Four justices concluded that waters of the United States include only relatively permanent bodies of water, not intermittent or ephemeral channels. Justice Kennedy (often the Court's swing vote) concurred, concluding that a water or wetland would be jurisdictional if it possesses a “significant nexus” to navigable waters. In his view, when the Corps seeks to regulate wetlands based on adjacency to non-navigable tributaries, it must establish this significant nexus on a case-by-case basis.
Regardless of its impact on the CWA jurisdiction, the Court's ruling is unlikely to alter FERC's interpretation of its mandatory hydroelectric licensing jurisdiction. In most cases, conventional hydroelectric projects will involve more typical streams, not ditches, man-made drains or other "adjacent" water bodies. Moreover, in non-conventional cases, such as pumped storage projects using ground water or intermittent streams, FERC has adopted a view that cabins its mandatory hydroelectric licensing jurisdiction consistent with Justice's Kennedy's nexus analysis.