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NACWA Legal Alert (Leg06-05)

Member Pipeline - Legal - Alert (Leg 06-05)

To: Members & Affiliates,
Legal Affairs Committees
From: National Office
Date: July 10, 2006
Subject: U.S. SUPREME COURT RULES ON SCOPE OF FEDERAL CWA JURISDICTION OVER WETLANDS
Reference: Legal Alert 06-05

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On June 19, the U.S. Supreme Court (Court) ruled in Rapanos v. United States (U.S.) and Carabell v. U.S. Army Corps of Engineers (Corps). The Court ruled 5-4 to remand the joint cases to lower courts, but the justices failed to reach a consensus on the scope of federal power to regulate wetlands under the Clean Water Act (CWA). The cases, decided jointly, mark the fourth time the Court has addressed the CWA wetlands program in detail. Each time, the Court has struggled to provide a “test” for determining where the CWA’s jurisdiction over wetlands ends and where state authority begins. In the decision, the plurality[1] states that only those wetlands with a continuous surface connection to waterbodies are “waters of the Unites States” in their own right. Also, there must be no clear demarcation between “waters” and wetlands or wetlands “adjacent to” such waters for the Corps to acquire federal jurisdiction under the CWA. Thus, under the ruling, wetlands adjacent only to intermittent or ephemeral tributaries would not fall within Corps jurisdiction and would be regulated by the states. The decision, however, leaves many questions unanswered. As a plurality decision, no single “test” can be derived from the Court’s analysis. Furthermore, the Court remands the cases and states that each wetland must be assessed on a case-by-case basis in the future. Due to the fact that the decision does not set forth a particularly clear legal test or analytical framework for the future, there already is Congressional effort underway to clarify the CWA[2] and talk of federal agency rulemaking.

This Alert summarizes the Rapanos/Carabell decision and its implications for NACWA’s member agencies. This Alert also outlines NACWA’s next steps for addressing this evolving legal and regulatory arena. The decision will be discussed at the July 21 meeting of NACWA’s Legal Affairs Committee during the Association’s 2006 Summer Conference in Seattle, WA. A copy of the Court’s decision is available on NACWA’s Member Pipeline at http://www.nacwa.org/getfile.cfm?fn=2006-06-19rapanos.pdf.

As always, if you have any questions regarding this legal decision or NACWA’s other legal activities, please contact NACWA’s General Counsel Alexandra Dunn by e-mail at adunn@nacwa.org or by telephone at 202/533-1803.

I. Background
In April 1989, Mr. Rapanos filled wetlands in Michigan that he owned and sought to commercially develop. The land area that he filled had saturated soil conditions some of the time, yet the nearest navigable water was 11 to 20 miles away. When Rapanos sought a permit to backfill the lands, he was denied because Corps regulators confirmed that the saturated lands constituted wetlands and thus, were classified as “waters of the United States” and could not be filled under Section 403 of the CWA. Rapanos filled the wetlands and as a result was charged criminally and fined civilly.

The Carabells were also denied a permit to fill the drainage ditch that was separated from the wetlands by a man-made berm. Their land was about one mile from traditionally navigable water. Unlike Rapanos, they challenged the permit denial in the courts and did not proceed with their project.

In both cases, the landowners argued that Congress never intended the federal government to have jurisdiction over wetlands that are adjacent to tributaries or wetlands adjacent to navigable waters. Rapanos, in particular, contended that the government overstepped Congresses’ intentions by exercising an excess amount of authority and limitless interpretations of the CWA. Both Rapanos and Carabell argued that the Corps and EPA had abused their jurisdictional powers and that wetlands adjacent to intermittent waters were not in the scope of the federal agencies’ jurisdiction.

In the past, the Corps has interpreted its jurisdiction to include navigable water bodies, tributaries to navigable water bodies, and wetlands adjacent to both. In earlier cases concerning similar issues, the courts have deferred to the Corps on wetlands issues because of the ambiguity in deciphering where a water of the U.S. ends and where land begins.

II. The Plurality Opinion
Four of the nine justices (Chief Justice Roberts and Justices Scalia, Thomas, and Alito) signed onto the decision to remand both cases to the lower courts to apply a proper understanding of “waters of the United States.” As articulated by Justice Scalia—the author of the plurality opinion—to establish the wetlands are covered by the CWA requires two findings: 1) the adjacent water must be a “water of the U.S.” (i.e., relatively permanent body of water connected to navigable water); and 2) the wetland must have a continuous surface connection to that water (i.e., must be difficult to decipher where water ends and land begins). The plurality declares the Corps’ definition of the “waters of the U.S.” too expansive and thus, impermissible. Justice Scalia explains his narrower definition of waters by referring to the definite article “the” and the plural number in “waters.” His interpretation elucidates that “the” and “waters” connote relatively permanent bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Under the plurality opinion, then, it would appear that the wetlands Rapanos and Carabell own ultimately will be exempt from federal regulation because as Scalia has written—wetlands adjacent to intermittent waterbodies are not included in the proper understanding of the “waters of the U.S.”

This narrow opinion has potentially serious implications, considering it leaves many of our nation’s waters—including 270-to-300 million acres of swampy lands in the United States or any intermittent channel or conduit—unprotected by the CWA if adjacent waters do not meet the plurality’s proper understanding of “waters of the U.S.”

III. The Concurrence
Justice Kennedy joined the majority’s decision to remand the cases—hence the 5-4 decision. However, Justice Kennedy did not agree with the analysis and reasoning of the plurality. Justice Kennedy was unwilling to follow the plurality’s limitation of the federal government’s power to regulate wetlands or other non-navigable waters to only those with an important connection to navigable waters. Instead, Justice Kennedy based his concurrence on the Supreme Court’s prior ruling in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) that provided CWA jurisdiction if the wetlands had a “significant nexus” to navigable waters. To establish a significant nexus, the Corps must determine—on a case-by-case basis—if the wetlands alone or in combination with similarly situated lands in the region significantly affect the chemical, physical, and biological integrity of “waters of the U.S.” Under this test, if a significant nexus is found, the federal government can attain CWA jurisdiction over wetlands. Justice Kennedy suggests that in the future, the Corps promulgate a new regulation that satisfies the significant nexus test or that it apply the test on a case-by-case basis.

IV. The Dissenting Opinion
The remaining justices (Justices Stevens, Breyer, Ginsberg, and Souter) interpreted the CWA to include not only wetlands adjacent to navigable waters but also wetlands adjacent to tributaries. Their reasoning in retaining the Corp’s authority over wetlands adjacent to tributaries deferred to the general purpose of the CWA, as wetlands generally have a significant nexus to the watershed’s water quality. The four dissenters interpreted the statute broadly to retain the authority of the federal government to protect the “waters of the U.S.” The justices concluded that they would defer to the Corps judgment due to the ambiguity surrounding where land ends and waters begin. Justice Stevens—author of dissenting opinion—discusses the implications of curtailing the Corps’ jurisdiction of more than 30 years. Dissenters agree that the plurality opinion needlessly jeopardizes the quality of our waters.

V. Implications of No “Rule”
The Court’s decision in this case has significant implications for intermittent and ephemeral waterways, as it leaves over half of the nation’s wetlands and periodic streams potentially unprotected by federal regulation. In a second concurrence, Chief Justice Roberts expressed concern about not providing a test to determine federal regulator’s authority under the CWA. In the days following the decision, EPA’s Assistant Administrator for Water Ben Grumbles expressed disappointment in the Court’s unresolved findings. Grumbles stated, “We will explore [the] next steps to further wetlands protection and conservation through all available tools.”

Justice Kennedy effectively was the deciding vote in this case. As such, the Corps will have to develop an approach that satisfies his “test” and then appeases either the plurality or the dissenters. Thus, the SWANCC significant nexus test will likely remain a critical part of wetlands analysis in the future.

VI. NACWA’s Next Steps
NACWA will closely watch legislation that progresses, and any proposed regulatory changes, to address the Court’s decision in Rapanos. As always, we will keep the membership apprised of further developments in this important matter.

 


[1] A plurality opinion is one where a majority of the Court has concurred in the result – but not the reasoning. Thus, the reasoning or analytical process followed by the plurality is not binding in future cases.

[2] The bills would amend the CWA to remove "navigable waters" and replace it with "waters of the United States," expanding the federal government's jurisdiction. The House bill (H.R. 1356), introduced by Rep. James Oberstar (D-Minn.), has 161 co-sponsors. The Senate bill (S. 912), introduced by Sen. Russ Feingold (D-Wis.), has 15 co-sponsors.