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Supreme Court Issues Decision Restricting Federal Jurisdiction Under The Clean Water Act But Leaves Many Questions Unanswered

By: Paul S. Weiland
06/20/06

On June 19, a fractured Supreme Court issued its decision in the consolidated cases Rapanos v. United States and Carabell v. United States (hereinafter Rapanos). Petitioners in both cases challenged the jurisdiction of the U.S. Army Corps of Engineers to regulate the discharge of dredged or fill materials to wetlands located in proximity to water features that empty into traditional navigable waters under section 404 of the Clean Water Act. The Court vacated the lower court decisions, which had upheld the Corps’ expansive interpretation of its own jurisdiction and remanded the matters for further proceedings.

Although the impacts of Rapanos cannot be fully understood at this time, persons with pending Corps section 404 permit applications may wish to consider whether Rapanos eliminates the need to obtain such a permit.

Like the Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (or SWANCC), Rapanos restricts the jurisdiction of the Corps under the Clean Water Act. For this reason, it may provide some regulatory relief to persons who undertake activities that result in the discharge of dredged or fill materials to wetlands or other water features. At the same time, this first major environmental decision of the newly composed Roberts Court demonstrates the Court’s continuing inability to reach consensus or even provide clear guidance to administrative agencies and the regulated community in cases involving the nation’s major environmental statutes. The nine member Court issued five separate decisions with no single decision garnering the necessary five votes to carry the day.

At issue in the cases were two interrelated issues: (1) what water features are included in the term "waters of the United States" as that term is used in the Clean Water Act and (2) what wetlands are included in the term "waters of the United States" as that term is used in the Clean Water Act.

In the plurality opinion written by Justice Scalia, four of the Justices held with respect to the first issue that "the phrase ‘waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes." Justice Scalia also clarified that "the phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." With respect to the second issue, the plurality held that "only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between waters and wetlands, are adjacent to such waters and covered by the Act."

Justice Kennedy joined the plurality in vacating the lower court judgments and remanding the cases for further proceedings. But his rationale differs markedly from the plurality. Justice Kennedy rejected as impractical and unpersuasive the plurality’s position. Justice Kennedy proposed an alternative two-prong approach to determine whether the Corps has jurisdiction: when the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, "it may rely on adjacency to establish its jurisdiction" and when the Corps seeks jurisdiction to regulate wetlands based on adjacency to non-navigable tributaries, it "must establish a significant nexus" consistent with SWANCC. According to Justice Kennedy, wetlands possess such a nexus if either alone or in combination with similarly situated lands the wetlands significantly affect the chemical, physical, or biological integrity of other covered waters more readily understood as navigable.

Four justices dissented from the judgment rendered. Justice Stevens, who authored the dissent, rejected the approaches advocated by the plurality and Justice Kennedy. Justice Stevens concluded that the Corps was acting within its jurisdiction in Rapanos and Carabell and indicated he would affirm the lower court judgments in both cases.

Because of the absence of a majority opinion, Rapanos fails to provide the certainty one might expect from a decision of the nation’s highest court. But it does signal a contraction in the jurisdiction of the Corps under the Clean Water Act. As Justice Stevens points out, there is a relatively high level of certainty that an activity that results in the discharge of dredged or fill material to waters that meet the test established by either the plurality or Justice Kennedy will be subject to Corps jurisdiction. In light of these facts, persons who are already engaged in the regulatory process with the Corps or who intend to engage in that process should work closely with their wetlands delineators and attorneys to evaluate the outer boundaries of the Corps’ jurisdiction. In addition, the regulated community should remain cognizant of agency reaction to the decision, both by the Corps at the federal level and by the State Water Resources Control Board in California.

Paul Weiland litigates environmental matters in trial and appellate courts under a variety of statutes, including CERCLA. Formerly, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice. In that capacity, he represented the United States as amicus curiae in Cooper v. Aviall. He can be reached at (949) 833-7800 or pweiland@nossaman.com.

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