June 26, 2006

The Supreme Court’s Murky Wetlands Ruling

Decision In Consolidated Case Is Not As Definitive As Had Been Hoped

By now you have undoubtedly seen several reports of the much anticipated decision of the United States Supreme Court in the consolidated cases of Rapanos v. United States and Carabell v. United States.

Unfortunately, some of those reports have made either more or less of the decision than is justified.

That is understandable; many had hoped this case would offer a definitive and objective test for the definition of “navigable waters” under the Clean Water Act in order to clarify which waters and wetlands are subject to the Act. While the decision offers some important guidance, it does not provide a “bright line” test.

In Rapanos, the plaintiffs filled three different wetlands sites in Michigan without the proper Clean Water Act permits under Section 404. At one site the wetlands were connected to navigable waters by a manmade drain that drained waters from the wetlands into a creek that then flowed into a river some eleven miles away that ultimately emptied into Lake Huron . At another site the wetlands drained into a manmade drain that connected to a navigable river. In the third instance the wetlands drained into adjacent wetlands that were linked to a river flowing into Lake Huron .

The Carabell plaintiffs had pursued a permit to fill forested wetlands located one mile from Lake St. Claire in Michigan from which water drained through a ditch into a drain that emptied into a creek, which in turn entered into Lake St. Claire.

In none of these instances were the wetlands immediately adjacent to or flowing directly into a navigable waterway.

The Court determined by a 5-4 vote that in each of these instances, the wetlands in question were not subject to Clean Water Act regulation.

However, the Court failed to reach a consensus on the test to be used to determine when wetlands are subject to federal jurisdiction, resulting in five different written opinions.

Ultimately, four justices voted in favor of significantly narrowing the definition of “navigable waters” under the Act (thus voting to limit federal jurisdiction) while four justices voted to uphold the much broader definition (and broader federal jurisdiction) advocated by the Corps of Engineers.

As a result of this 4-4 split, Justice Anthony Kennedy’s concurring opinion carried the day, resulting in a 5-4 decision against the Corps and remanding the cases to the trial courts for further deliberations.

The four justices voting to limit the government’s Clean Water Act jurisdiction found that the Act only applies to “relatively permanent, standing or flowing bodies of water” and that wetlands fall under the Act only if they bear “a continuous surface connection to bodies of water that are ‘waters of the United States ’ in their own right.”

The four justices seeking to sustain or expand jurisdiction under the Act argued that “all identifiable tributaries” of navigable waters should be covered, meaning almost all wetlands would be subject to the Act.

Justice Kennedy rejected both approaches and, relying on an earlier Court decision – Solid Waste Agency of North Cook County vs USACE – found that jurisdiction over wetlands depends upon the existence of a “significant nexus” between the wetlands in question and navigable waters in the traditional sense.

Given some of the recent determinations regarding the scope of the Clean Water Act’s reach such as Headwaters Inc. v. Talent Irrigation District (irrigation canals), Save Our Sonoran Inc. v. Flowers ( Arizona arroyos with no navigable water connection) and Baccaratt Fremont Development, LLC v. Army Corps of Engineers (wetlands separated from navigable waters by a 70 foot thick impermeable berm),

Justice Kennedy’s opinion is certainly a positive development for those wishing to rein in federal jurisdictional hubris. However, the “Rapanos test” is far from the hoped for bright line test.

Instead, it will require case by case and very fact-specific analysis, undoubtedly inviting more litigation and fostering disputes over whether wetlands adjacent to non-navigable waterways have the required nexus to justify regulation under the Clean Water Act.

Justice Kennedy’s Reasoning

In Wetlands Cases Decision

Justice Kennedy explained that wetlands possess the requisite nexus,

and thus come within the statutory phrase “navigable waters”, if the

wetlands, either alone or in combination with similarly situated lands in

the region, significantly affect the chemical, physical and biological

integrity of other covered waters readily understood as “navigable”.

When wetlands’ effects on water quality are speculative or

insubstantial, they fall outside the zone fairly encompassed by the

statutory term “navigable waters” and are thus not subject to federal

regulation under the Clean Water Act. Justice Kennedy was also clear

that the Clean Water Act is intended to regulate at lease some waters that

are not navigable in the traditional sense.

Justice Kennedy noted that the government could choose to

identify categories of water bodies that are “likely to perform

important functions for an aquatic system incorporating navigable

waters” on the basis of specifically articulated factors.

However, Justice Kennedy found that the existing Corps standard

for determining when wetlands are “waters of the United States ” did

not provide the required level of assurances. According to Justice

Kennedy, wetlands immediately adjacent to navigable in fact waters

can be regulated without further demonstration of their impacts on

waters of the Unites States , but the government must establish the

required “significant nexus” on a case by case basis when attempting