Judicial Approaches to Dealing With Constitutional Limitations Surrounding Ecosystem-Based Management: Can Rapanos Offer Guidance by Suggesting “Ecosystem Factors” in the Definition of What Constitutes “Waters of the United States?”

I. Introduction

The purpose of this paper is to analyze recent judicial precedent interpreting the extent of federal jurisdiction over ecological resources within the context of coastal resource management. A focus will be placed on the recent US Supreme Court opinion in Rapanos v. United States.1 The intent is to determine, to some extent, the willingness of the judicial branch to read “ecosystem principles” as a basis for accepting federal jurisdiction under the commerce power of the United States Constitution.2 What may be defined as “ecosystem services” will likely include resources that extend into jurisdictions traditionally reserved to the states. One such area is coastal resources, including terrestrial waters that ultimately influence the biological, chemical, and physical health of those resources. Ultimately, the extent of federal jurisdiction will be resolved in the judicial arena. This paper attempts to look at how the judiciary, within the context of the Rapanos opinion, most recently tried to resolve a longstanding jurisdictional debate. The decision, as well as at least one subsequent federal appellate opinion, seems to suggest ecosystem principles may be a judicially allowable manner of federal regulation, even where such regulation extends to traditional state resources.

Regardless of the arguments for or against, ecosystem-based management seems destined to become a component of future environmental management. Looking at

1 547 U.S. , 126 S.Ct. 2208 (2006). 2 U.S. Const. art. I, §8, cl. 3.

1coastal resources, two recent reports, generated from the private and public sector respectively, have agreed upon the need for ecosystem-based management, along with a more integrated federal approach.3 Moreover, scientists have increasingly supported the wisdom of such management schemes.4 It seems only a matter of time until policy catches up with the scientific call to ecosystem arms.5 Indeed, many “vehicles” for the implementation of ecosystem-based principles are beginning to develop, at least on a multi-state and regional basis.6 This is the case even where a definition of “ecosystem- based management” remains operationally vague for policymakers.7 Regardless of “definitional” challenges, most advocates of ecosystem management argue for increased

3 See, Pew Oceans Commission. America’ s Living Oceans: Charting a Course for Sea Change (2003). Available at: http://pewtrusts.org/pdf/env_pew_oceans_final_report.pdf (last visited: April 7, 2007); U.S. Commission on Ocean Policy. An Ocean Blueprint for the 21st Century (2004). Available at: http://www.oceancommission.gov/documents/full_color_rpt/000_ocean_full_report.pdf (last visited: April 7, 2007).

4 See, Editor, Ocean Policy: Troubled Waters, Nature, August 15, 2002, at 718-720 (Discussing the fragmented nature of federal policy regarding ocean management, as well as the need for a uniformed, ecosystem-based approach based on scientific principles).

5 It should be noted certain programs related to ocean sources have already embraced principles of ecosystem-based management. See generally, 16 U.S.C.A. §§ 1431-1445a (Marine Protection, Research and Sanctuaries Act); 16 U.S.C.A §§ 1801-1882 (Magnuson-Stevens Fishery Conservation and Management Act). Unlike the concepts developed in these marine-focused laws, the purpose of this paper is to analyze a broader concept of “ecosystems-based” management, encompassing hydrologic spatial scales from terrestrial to marine sources.

6 See, Kristen M. Fletcher, Regional Ocean Governance: The Role of the Public Trust Doctrine, 16 DUKE ENVT’L. L. & POL’Y F. 187 (2006).

7 Recent academic work has suggested managers in the public arena are not adopting ecosystem-based management principles. Part of the problem is a lack of agreement on a precise definition of ecosystem-based management. See, Arkema, KK., et al., Frontiers in Ecology and the Environment, 4(10): 525-532 (2006).

centralization of authority, and therefore power at the federal level.8 This seems a logical solution, as such a management scheme ultimately depends on the ability to capture ecosystems on geographic scales that often extend beyond local, state, and even national borders.9

The legal problem with an expansive ecosystem-based approach is that it contrasts with traditional judicial precedent, and U.S. statutory principles aimed at unilateral federal control over state rights in coastal regions.10 In the context of the U.S. Coastal Zone Management Act (“CZMA”), over thirty years of federal acknowledgment of state interests in coastal regions needs to be adequately considered.11 Any proposal of

8 Both the Pew Oceans Commission, as well as the U.S. Commission on Ocean Policy, currently combined and renamed the Joint Ocean Commission Initiative (“JOCI”), along with international consensus through the Millennium Ecosystem Assessment, Ecosystems and Human Well Being: Wetlands and Water, have recently reported the major policy- driving mechanism requires, in most instances, a centralized, uniform approach based on ecosystem principles. Reports from the respective organizations detailing such policy recommendations can be found as follows:

Joint Ocean Commission Initiative, From Sea to Shining Seas: Priorities for Ocean Policy Reform 8-10 (2006). Available at: http://www.jointoceancommission.org/press/press/release0613_assets/seareport.pdf (last visited: January 8, 2008);

Millennium Ecosystem Assessment, Ecosystems and Human Well Being: Wetlands and Water Synthesis (2005). Available at: http://www.maweb.org/documents/document.358.aspx.pdf (last visited: January 7, 2008).

9 Some suggest a true ecosystem analysis is critical to properly protecting important aquatic resources. This extends from oceans and coastal areas, to inland rivers, streams, tributaries and wetlands, as well as to the terrestrial dry lands of a particular eco-region. For a discussion of ecosystem breadth, see generally, National Research Council, Valuing Ecosystem Services: Toward Better Environmental Decisionmaking, 59 (2005).

10 See generally, 16 U.S.C.A §§ 1451-1464 (Coastal Zone Management Act). 11 Id. at §1456(c)(1)(A) (The “Federal Consistency” Requirement).

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further federal power over traditional state coastal lands will likely be met with harsh criticism.12 It is more likely any successful approach must include state stakeholders in the decision making process.13

One pending question focuses on the judicial branch, and the limits of federal power over traditional state resources. Focusing on water, one must consider to what extent the federal government could justify control over ecosystem resources found to be outside the purview of traditional interpretations of “commerce.”14 As noted above, the purpose of this paper is to analyze the recent decision of the US Supreme Court in

12 See, National Governor’s Association, Public Comment on Ocean Commission’s Final Report (October 29, 2004). Available at: http://ocean.ceq.gov/comments/2_gov_assoc.pdf . Last visited (February 1, 2007). The comments from the governor’s council highlighted the following points: “Maintain State Primacy;” “Avoid Federal Preemption.” See also, Lawrence Juda, The Report of the U.S. Commission on Ocean Policy: States Perspectives. Coastal Management, vol. 34, pgs. 1-16 (2006) (Summarizing coastal state objections to a centralized, federal management scheme of coastal resources based on state sovereignty, and the current federal consistency requirements found in the CZMA).

13 Supra, n. 8 (noting the emergence, and importance of “regional ocean governance” (ROG) entities).

14 Supra, n. 2. The Commerce Clause power under the U.S. Constitution grants the federal government the ability to regulate activities that impact interstate commerce. This can occur between states, or wholly intra-state. See generally, Wickard v. Filburn, 317 U.S. 111 (1942). The key is to find the activity will tend to impact interstate commerce. The Commerce Clause would be the main source of power for the federal government to enact ecosystem-based management of water resources. However, there are other forms of “power” that may be used by the federal government. An example might be the spending power of the federal government. Many states comply with federal standards for no other reason than federal funds are made available to the state program. Indeed, much of the compliance seen by states to the federal guidelines of coastal management, under the Coastal Zone Management Act, is directly tied to federal funding of such state coastal programs.

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Rapanos v. United States.15 The question presented is to what degree Rapanos may be seen as judicial acceptance of federal claims over ecologically connected water resources considered to be outside the traditional notions of “commerce.”16 In the context of water control, this generally refers to limitations based on the definition of “navigability.”17 Is it possible Rapanos suggests judicial acceptance of federal jurisdiction based on an “ecosystem-connection” argument? At least one recent federal court of appeal decision applying Rapanos favors this possible expansion of federal control,18 and such an expansion may be a prerequisite to uniform implementation of any policy favoring ecosystem-based management. Questions remain as to how extensive federal power over natural resources, especially those over “isolated” water bodies, will expand based on a long history of local control, and fundamental constitutional limitations.19

15 Supra, n.1.

16 The question stems in great part from the judicially interpreted constraints to federal control placed on certain “isolated” water bodies (to be discussed further infra), and the scientific evidence suggesting these water bodies are nonetheless critical in the overall hydrologic cycle. See generally, The Heinz Center: The State of the Nation's Ecosystems: Measuring the Lands, Waters, and Living Resources of the United States. 21, 36 (2002).

17 The U.S. Supreme Court has generally held water bodies (most importantly wetlands) are subject to federal jurisdiction and control under the Clean Water Act only when there is some substantial connection to navigable waters. The navigable waters requirement is itself attached to the commerce power from which the federal government derives its general power over terrestrial waters.

18 Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006).

19 Recent congressional action is attempting to clarify the expanse of federal jurisdiction over wetlands. Representative James Oberstar, Chair of the House Transportation and Infrastructure Committee, plans to introduce a bill titled the Clean Water Authority Restoration Act. The bill would aim to clarify the scope of the Clean Water Act and its applicability to wetlands by codifying broad protection and specifically stating the law extends to intermittent streams, wet meadows, and several other types of water, including bodies not physically adjacent to larger, navigable waters.

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II. The Future Policy of Ocean/Coastal Governance is Likely to Involve Ecosystem-Based Management in Some Measure.

A. The Call to Ecosystem-Based Management

The last ten years has seen an emphasis placed on a holistic review of near ocean resources in the United States unprecedented since the 1960’s.20 The two major domestic reports to emerge from this focus have been the PEW Oceans Commission Final Report of 2003,21 and the U.S. Commission on Ocean Policy’s Report of 2004.22 In addition, the United Nations has engaged in an assessment of worldwide resources, to include marine resources, placing its findings in a report entitled Ecosystems and Human Well-being; A Framework for Assessment.23 All of these reports, in one form or another, contain policy recommendations extolling the virtues of ecosystem-based management of ocean resources.24 The academic community has followed suit, extolling the scientific wisdom of such a management approach.25 In the U.S., policy responses have been relatively

Available at: http://oberstar.house.gov/ (last visited: January 7, 2008).

20 Modern coastal resource management stemmed from the Commission on Marine Science, Engineering, and Resources, also known as the “Stratton Commission.” The Commission’s final report to Congress entitled, “The Nation and the Sea,” was submitted to Congress in 1969 and is credited as being the impetus for the Coastal Zone Management Act of 1972.

21 Supra, n.3 22 Supra, n.3

23 Millennium Ecosystem Assessment. Ecosystems and Human Well-being: A Framework for Assessment (2003). Available at: http://www.maweb.org/documents/document.300.aspx.pdf (last visited: January 7, 2008).

24 Supra, n. 8. 25 Supra, n. 8

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slow, with the U.S. Senate asking for a priority listing from the now-combined PEW/U.S. Commission alliance, renamed the Joint Ocean Commission Initiative (“JOCI”).26 More recently, the Joint Subcommittee on Ocean Science and Technology (“JSOST”) has issued a priority plan for further research based on the aforementioned policy recommendations.27

Assuming Congress is prepared to move forward with the recommendations laid out by JOCI and JSOST, it remains to be seen what form such proposed regulation will take. The major source of federal regulation of coastal marine waters since 1972 has been the CZMA.28 Under this scheme, the federal government has taken a joint- management role, encouraging states to develop plans within federal guidelines, and then mandating federal consistency requirements, whereby federal agencies actions must be consistent with the state plan.29 Some have suggested this creates a “reverse” Supremacy Clause, giving state’s superior rights over the federal government when it comes to coastal water regulation.30 Others believe this is simply a case of contractual federalism,

26 Supra, n. 8

27 National Science and Technology Council’s Joint Subcommittee on Ocean Science and Technology. National Ocean Research Priorities Plan and Implementation Strategy (2007). Available at: http://ocean.ceq.gov/about/docs/orpp12607.pdf. (last visited: January 7, 2008).

28 Supra, n. 10. Other federal laws have played a role in regulating coastal marine resources. These include the Clean Water Act, 33 U.S.C §1251, et seq.; and the Rivers and Harbors Act, 33 U.S.C. §401, et seq.

29 Supra, n. 10 at §1456(c)(1)(A).

30 See, Bruce Kuhse, The Federal Consistency Requirements of the Coastal Zone Management Act of 1972: It’s Time to Repeal This Fundamentally Flawed Legislation. 6 OCEAN & COASTAL L. J. 77, (2001).

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with no substantial change in the federal/state power structure.31 Coastal state responses to ecosystem-based management, and thus greater federal control of the coastal zone, has been protectionist of state rights.32 Based on such responses, it may be implementation of a federally controlled management plan will be mired in difficulties.33

III. From a Judicial Perspective, The Question of Whether Ecosystem Management is a Viable Federal Exercise Remains to Be Seen.

Outside of the legislative and political difficulties lie judicial barriers to ecosystem management. Specifically, the issue involves the question of federalism, and the Commerce Clause justification supporting federal regulation of the environment.34 Concerning ecosystem management of marine systems, certain scientific opinion would make relevant for management purposes all components of the hydrologic cycle, including terrestrial sources.35 Again, from the water-based environment, this would include bodies of water that clearly are not navigable, naturally occurring, nor subject to the ebb and flow of tide. As such, it seems jurisprudentially difficult to suggest an ecosystem-based management scheme for water resources, as science would include within the “ecosystem” classification bodies of water fragmented from traditional notions

31 See, John A. Duff, The Coastal Zone Management Act: Reverse Pre-emption or Contractual Federalism? 6 OCEAN & COASTAL L. J. 109 (2001).

32 Supra, n.12.

33 Supra, n. 12 (Noting State Governor’s numerous objections to any plan equating to less state input and control).

34 Supra, n. 14.

35 See generally, Patrick Comer et al., Biodiversity Values of Geographically Isolated Wetlands in the United States, NatureServe (2005). See also, Stuart Pimm, The Value of Everything, Nature, May 15, 1997, at 231-32.

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of “commerce.” Thus, acknowledging the commerce confines surrounding federal jurisdiction; is it likely the judicial branch is willing to allow an expanded federal control over terrestrial water resources that are otherwise ecologically-connected to coastal water resources, even where a direct physical connection is lacking? The recent holding in Rapanos suggests an intriguing possibility.

IV. Rapanos Offers Potential Support for Extending Federal Rights Over Ecosystems, to Include Non-Navigable Waters.

A. Rapanos may extend the definition of “waters of the United States” based on a “Significant Nexus” test.

Rapanos is a Clean Water Act (“CWA”)36 case. However, the implications from a federal jurisdiction standpoint seem potentially far-reaching. Rapanos dealt with the meaning of “waters of the United States,” under the CWA, and therefore the extent of federal jurisdiction over wetlands and other “non-navigable” waters.37 There is a direct connection between such jurisdiction under the CWA, and the potential expansion of federal control over coastal resources, since both acts deal with “waters of the United States,” and constitutional limits of federal power attached thereto. In order to better understand the core issue decided in Rapanos, and more importantly the effect for “ecosystem-based” management in general, a short history of federal jurisdiction of non- navigable water bodies under the CWA follows.

36 33 U.S.C.A. §1251 et seq. 37 Rapanos v. United States, 547 U.S. , 126 S.Ct. 2208 (2006).

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1. Historical Developments of Federal Wetland Regulation.

Prior to Rapanos, the U.S. Supreme Court had previously dealt with the question of when “non-navigable” waters are subject to federal jurisdiction.38 In United States v. Riverside Bayview Homes Inc.,39 the Court determined federal jurisdiction extended to non-navigable bodies of water that are physically adjacent40 to other bodies of water over which the federal government had jurisdiction. Importantly, the Court justified its decision, in part, on the inherent difficulties in establishing the ecological connection between navigable waters and adjacent wetlands.41

The Court went on to explain the importance of an “ecological” assessment based on hydrological connections. The Court noted, in relevant part: “The regulation of activities that cause water pollution cannot rely on...artificial lines...but must focus on all waters that together form the entire aquatic system.”42 However, the Court went on to

38 It has traditionally been assumed the federal government’s jurisdiction regarding water was directly related to claims of commerce, as the Commerce Clause of the United States Constitution provided the main legal grounds for federal jurisdiction. Therefore, commerce, as defined by the U.S. Supreme Court, has always been directly related to navigation; the main ability of engaging in commerce is through the use of navigable waterways. See generally, The Daniel Ball, 77 U.S. 557 (1870); United States v. Appalachian Electric Power Co., 311 U.S. 337 (1940).

39 474 U.S. 121, 106 S.Ct. 455 (1985).

40 In the later Rapanos decision, this purported limit of defining physically adjacency as a test for federal jurisdiction is discussed in Justice Kennedy’s concurring opinion.

41 Supra, n. 39, at 131. The U.S. Supreme Court has indicated its affirmation of the physically adjacent rule set forth by the Army Corps of Engineers was based in large part upon Congress’s approval of the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters. Id., at 135-39.

42 Supra, n. 39, at 134.

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expressly note its decision was not based on a hydrological connection between the wetlands and adjacent bodies of water, and its decision did not address federal jurisdiction over wetlands that are not adjacent to navigable waters.43 Rather, the Court limited its decision to water bodies that are clearly navigable in character, as well as non- navigable waters physically adjacent to such navigable waters.44 Thus, although Riverside Bayview discussed the importance of an “ecosystem” approach in identifying important contributors to water pollution, it specifically limited CWA jurisdiction to water bodies with a physical adjacency to traditional navigable waters. This may have been a purposeful attempt to place “waters of the United States” in a statutory framework that did not offend constitutional limits on federalism. After Riverside Bayview, the question of federal jurisdiction over wetlands not physically adjacent to navigable water bodies remained unsettled. A further clarification was to come from the Court in a case dealing with migratory birds.

In Solid Waste Agency of Northern Cook County v. United States (“SWANCC”),45 the Supreme Court limited federal jurisdiction over water bodies, where the connection to interstate commerce was based on a “migratory bird” argument, rather than proximity to adjacent navigable waters. In SWANCC, the Army Corps of Engineers attempted to claim jurisdiction over a body of water that the U.S. Supreme Court determined was “isolated,” and maintained no direct “hydrological,” or surface connections to otherwise navigable

43 Supra, n. 39, at 134.

44 Supra, n. 39, at 134. It should be noted the Court’s emphasis here was on one of physical adjacency, rather than a hydrological connection between the non-navigable and navigable water bodies.

45 531 U.S. 159, 121 S.Ct. 675 (2001).

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waters.46 As such, federal jurisdiction could not attach to the water body based on its “isolated” status. The Court indicated federal jurisdiction, under commerce clause constraints, only applies to the following: (1) navigable waters; (2) waters that are physically adjacent to navigable waters; and (3) direct tributaries to navigable waters.47

The waters at issue in SWANCC were abandoned, man-made sand and gravel pits that had since flooded and contained permanent and seasonal ponds.48 EPA attempted to claim jurisdiction over the bodies of water claiming the waters were used by migratory birds, which themselves were instrumentalities of interstate commerce.49 The Court rejected this argument, and ultimately discussed the case in contrast to Riverside Bayview. The Court contrasted SWANCC from Riverside Bayview, claiming SWANCC was factually dissimilar because it dealt with wetlands that were not adjacent to navigable waters. This was meaningful for the Court, because where the Court had found Congressional intent for the CWA to cover adjacent water bodies; it could discern no such intent for isolated water bodies. As such, the Court dismissed federal jurisdiction over such lands.50

Importantly in SWANCC, the Court discussed the “significant constitutional questions” raised by the “migratory bird” rule. Rather than deferring to agency discretion as it had done in Riverside Bayview, the Court drew a line in the gravel pit, indicating an

46 Id., at 160. 47 Id., at 172. 48 Id., at 159. 49 Id.

50 Id., at 172.

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extension of federal jurisdiction over isolated water bodies raised serious constitutional and federalism questions. Since the Court determined there was a lack of Congressional intent under the CWA to extend jurisdiction to these lands, it did not address the magnitude of these constitutional concerns. Thus, although it did not decide the constitutional issue directly, the Court did address the fundamental concerns associated with expanding federal jurisdiction into traditional state territory. Such an expanse of federal jurisdiction may be necessary to properly implement an ecosystem-based approach to protecting coastal marine resources.

Assumedly after SWANCC, any water body that was physically isolated from navigable waters, regardless of an ecological connection, did not rise to “waters of the United States,” and was therefore not subject to federal jurisdiction. The Army Corps has read SWANCC narrowly, while some Courts of Appeal have taken SWANCC to have an expansive effect.51

Two years following the SWANCC decision, the PEW Oceans Commission Report was released, closely followed by the U.S. Commission on Ocean Policy. Both Commissions suggested an ecosystem-based approach to ocean management. Such an approach, if implemented from a truly scientific standpoint, would likely conflict with the general test of federal jurisdiction highlighted by precedents such as SWANCC. This is because ecosystem management would focus on factors outside of traditional notions of “navigability” and “commerce.” The reason for this is because a true ‘ecosystem”

51 See generally, Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001). “Under Solid Waste Agency, it appears that a body of water is subject to regulation under the CWA if the body of water is actually navigable or is adjacent to an open body of navigable water.” Id., at 269.

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approach would consider all relevant mechanisms affecting ocean resources; all inputs and outflows that tend to aggregate and affect the system over time.52 Ultimately, such an analysis would include both natural and artificial bodies of water, including “isolated,” non-navigable wetlands, which are not directly connected to larger navigable bodies of water. Previous judicial opinions, including SWANNC, seemed to limit the inclusion of potentially significant water bodies from federal regulation. This was true until the recent concurring opinion by Justice Kennedy in Rapanos.

Rapanos addressed a legal issue left unresolved in Riverside Bayview and SWANCC – whether “waters of the United States” extends to wetlands that are not physically adjacent to navigable waters. A four-justice plurality opinion held wetlands are subject to federal jurisdiction under the following limited circumstance: (1) where such waters are physically adjacent to waters of the United States; and (2) have a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.53

Such a test arguably limits what bodies of water can be included in federal jurisdiction, as Justice Scalia pointed out by referencing the terms “the” and “waters” as

52 For example, the amount of nitrogen carried by major U.S. rivers has increased dramatically in recent decades as a result of terrestrial activities, including deposits of nitrogen from isolated water bodies, which feed into larger, navigable waters. Nitrogen levels in the Mississippi River, which drains forty percent of the coterminous United States, have tripled since the 1950s. Nitrogen causes excess algae growth, reduces recreational and

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