Environmental Corner: News Around the Nation

Ditches at the U.S. Supreme Court

The EPA Has a New Administrator

How The Services Can Kick Their Litigation Habit

 Ditches at the U.S. Supreme Court

Ditches, and the Corps's ability to regulate them, are again before the U.S. Supreme Court. Within the last month, two petitions for certiorari have been filed with the Court asking it to consider the extent of jurisdiction excercised by the Corps's in its continued regulation of ditches.  

In Rapanos v. United States, No. 04-1034, the federal government is again claiming that a drainage ditch is a “tributary” and that the wetland in question is adjacent to a non-navigable tributary of a navigable water. The current case involves civil violations of the CWA.  In the Sixth Circuit opinion, the court followed its prior decision in the criminal case, as well as citing with approval the approach taken by the 4th Circuit in Deaton, and upheld federal regulation over the ditch. However, in discussing the split among the circuit courts on this issue, the court repeatedly discussed how difficult it was to properly determine jurisdiction. Significantly, the court noted that the Supreme Court’s two leading decisions on jurisdiction (Riverside Bayview and SWANCC) have “done little to clear the muddied waters of CWA jurisdiction.” Because this decision presents another opportunity to seek Supreme Court review of this issue, NAHB will file an amicus brief in support of cert. on April 4, 2004.

Mr. Rapanos was recently sentenced on the previous case, and a description of the proceedings is available by clicking on the "Court Quips" article in the left-hand margin.

Two weeks after the government's Response was due in Rapannos, a second petition for certiorari was filed by petitioners seeking review of the extend of federal jurisdiction over wetlands that are adjacent, but not connected to any tributary or navigable water. In the case of Carabell v. U.S. Army Corps of Engineers, No. 04-1384 (filed April 11, 2005), the petitioners claim their wetlands are not connected hydrologically to any tributaries or "waters of the United States." They are asking the Supreme Court to grant certiorari and resolve the split among the Circuit Courts of Appeal on these jurisdictional issues.

The EPA Has a New Administrator

The U.S. Senate has confirmed Stephen Johnson to head the federal government's environmental protection efforts, making him the 11th U.S. Environmental Protection Agency (EPA) administrator and the first career staff member to lead the agency. Mr. Johnson was approved by voice vote on April 29th, shortly before the Senate adjourned for the start of its week-long recess. For his complete biography, please visit the EPA's web site at:  http://www.epa.gov/adminweb/administrator/biography.htm

How The Services Can Kick Their Litigation Habit

By:  Duane Desiderio*

The Endangered Species Act has been a model for dissension. That is especially so with critical habitat.  However, one point strikes chords of agreement from all sides:  the act is broken. Almost everyone concurs that the ESA has failed to achieve its primary goal to conserve the ecosystems upon which endangered species depend. But the act can work. Here is a 5-step plan for the Fish and Wildlife Service and the National Marine Fisheries Service to stop the litigation treadmill, and stride toward meaningful efforts that both protect species and balance economic growth:

1.  Give Teeth to Best Available Science:  The ESA requires that critical habitat designations (as well as listings and biological opinions) must all be based on the “best scientific and commercial data available.” As a unanimous Supreme Court wrote, “the obvious purpose” of the “best available science” requirement “is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise.” Stakeholders on both sides have lost faith in the Services’ decisionmaking ability, precisely because the level of scientific evidence to support critical habitat designations lacks rigor, accuracy, and legitimacy.

To gain their constituents’ confidence, the Services must seriously heed the standards set forth in the Information Quality Act. The IQA seeks to “ensur[e] and maximize[e] the quality, objectivity, utility, and integrity” of all information and statistics disseminated by federal agencies.

OMB’s guidelines implementing the IQA are an exercise in good government. They establish a presumption favoring peer-reviewed information; apply stricter qualitative standards for agency information that is considered “influential”; and afford the highest degree of stringency to information that analyzes risks to human health, safety, and the environment. The guidelines are designed to ensure transparency in federal decisiomaking, and allow the public to independently verify the facts upon which the agencies rely.

Once the Services adopt the spirit – and the letter – of the IQA, the floodgates to litigation will close. For example, a critical habitat designation that satisfies the OMB guidelines would likely receive Chevron deference in any court challenge.

2.  Don’t Just Designate Everything:  The regulated community has lost patience with the Services’ penchant to designate huge swaths of land as critical habitat. Examples abound of designations that sweep in areas simply because they potentially harbor an endangered species, or did so a long time ago.

Congress intended narrow critical habitat designations so resources could be focused o meaningful species protection. The ESA’s definition of critical habitat places primary emphasis on lands that are presently “occupied” by species. It further restricts critical habitat to “specific areas” that “shall not include the entire geographical area.” Moreover, critical habitat is limited to areas containing biological features that are “essential” for conservation. These important qualifiers have frequently been ignored. The Services must effectuate Congress’s intent to focus on areas that will incur objective and quantifiable species benefits. To this end, if unoccupied areas are being considered for designation, the Interior and Commerce secretaries should take seriously their responsibility to support and prove their “determination” that such unoccupied areas are absolutely “essential” for conservation.

3.  Conduct a Meaningful Economic Analysis:  Section 4(b)(2) allows the Services to exclude certain areas from critical habitat designation based on, among other things, a consideration of economic impacts. Courts have struck myriad designations where the Services have merely paid lip-service to 4(b)(2), or have otherwise conducted improper or insufficient economic analyses. The Services need to rethink their approach to economic analyses. They must incorporate a cost-effectiveness framework into their 4(b)(2) inquiries, which would allow them to compare the biological benefits provided by various habitat configurations, and accept a final designation that imposes the lowest amount of economic dislocation while still meeting the ESA’s objective of protecting habitat "essential” for conservation.

4.  Re-Define “Ad Mod”:  Controversy is raging regarding the legality of FWS’s regulation defining “destruction or adverse modification of critical habitat,” one of the standards for agency consultation under Section 7. The Fifth and Ninth Circuits have declared FWS’s “ad mod” definition illegal because they believe it sets the bar too high for protecting species at a level of “survival” and does not go far enough to ensure species’ “recovery.” Any meaningful effort to stop the treadmill must call upon the Services to redefine ad mod in a manner that does not so identically track its related “jeopardy” regulation.

5.  Protect “No Surprises”:  Since the vast majority of listed species inhabit nonfederal lands, the Services need to provide incentives to private landowners. The no surprises regulation, adopted by the Clinton administration and endorsed by Bush II, is at the top of the list. No surprises ensures that, except in very limited circumstances, the agreement struck by a landowner and the Services, regarding land set-asides and other types of agreed-upon mitigation in a habitat conservation plan, will remain intact.  While no surprises remains subject to court challenge, a vigorous defense by the services and industry groups will hopefully preserve the rule’s integrity. Moreover, to incentivize Section 10 agreements, lands covered under an HCP should not also be subject to separate, duplicative regulatory constraints through a critical habitat designation.

    *Copyright © 2005 Environmental Law Institute®, Washington, DC.  Reprinted with permission from the National Wetlands Newsletter™.  All rights reserved. [ return to top ]