Montana Supreme Court rules on ‘navigability,’ says there are limits to CWA authority

On Feb. 22 the U.S. Supreme Court overturned a Montana Supreme Court decision that dealt with “navigability” under the Clean Water Act (CWA) in PPL Montana v. Montana.
    While the primary issue before the Court was when to determine navigability for title purposes of streambed ownership, the court touched on issues relevant to navigability for regulatory authority purposes under the CWA.
    The Public Lands Council filed an amicus brief in the case, raising many regulatory authority arguments that petitioners in the case did not address. The high court’s Feb. 22 decision is positive, in that it reiterates what the Supreme Court has said many times before: that there are limits to CWA authority based on the word “navigable.”
    In the PLC brief, the organization specifically asked the Court to make it clear that the tests for identifying “navigable waters” are different depending on the context of the determination (e.g., equal footing, admiralty, regulatory). The Court made that point clearly.
    “This is important because EPA’s CWA Guidance (proposed) uses navigability determinations made for ‘any purpose’ to declare something a ‘traditional navigable water,’” says PLC. “The PPL decision raises issues with the foundation of the agencies’ CWA Guidance on this point.”
    PLC also made the point that when the Court in Rapanos (plurality and concurring) referred to “traditional navigable waters,” it meant the traditional Daniel Ball waters (waters that transport interstate commerce and form a continuous interstate highway). PPL Montana directly supports PLC’s argument.
    PLC was also writing to prevent the Court from adopting the notion that recreational use could be enough to qualify a waterbody in the CWA context as a “traditional navigable water.”
    “Recreational use was rejected for title purposes, indicating there must be a link between modern recreational use and use in interstate commerce, which supports our argument that a one-time recreational use cannot be the sole basis of a finding of navigability,” says PLC.
    For more information, contact Dustin Van Liew or Theo Dowling at dvanliew@beef.org or tdowling@beef.org, respectively. Information provided by PLC.