By Scott Mooney
Monday October 2, 2006
new york real estate journal
On June 19th, the United States Supreme Court issued its long-awaited ruling addressing the scope of the Clean Water Act’s authority over remote wetlands. The five-four plurality decision delivered in the consolidated cases of Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers, Nos. 04-1034 and 04-1384, was one of the most anticipated of the supreme court’s 2006 term, and had been the focus of scrutiny and debate from various levels of government, private property owners, and environmental interest groups. At issue was the U.S. Army Corps of Engineers’ (the Corps) regulatory authority over remote and isolated wetlands, and the interpretation of what constitutes “navigable waters” under the Clean Water Act (the CWA.) Both Rapanos and Carabell involved the issue of the Corps’ authority to regulate remote, non-navigable wetlands and manmade ditches located on private property under section 404 of the CWA. In Rapanos, the U.S. pursued both civil and criminal penalties against a Michigan-based land developer for filling in wetlands on his property without first obtaining a permit from the Corps.
Background
Both Rapanos and Carabell involved the issue of the Corps’ authority to regulate remote, nonnavigable wetlands and manmade ditches located on private property under section 404 of the CWA. In Rapanos, the U.S. pursued both civil and criminal penalties against a Michigan-based land developer for filling in wetlands on his property without first obtaining a permit from the Corps. The developer argued that the federal government could not have regulated any wetlands on his property, since the areas were not adjacent to any navigable waters. However, the Sixth Circuit, explaining that non-navigable waters must only exhibit a hydrological connection or some other “significant nexus” to traditional navigable waters to invoke federal jurisdiction, determined that the Rapanos wetlands fell within the ambit of the Corps’ regulatory authority.
The property at issue in Carabell contained wetlands that were hydrologically isolated by upland berms from manmade ditches, which drained off-site and eventually connected to a navigable lake. Following a denial of their permit application to fill the wetlands, the property owners challenged the EPA’s extension of federal jurisdiction to those areas. The property owners argued that the EPA and the Corps had overreached their authority by failing to identify a tangible connection between the wetlands and nonnavigable tributaries before asserting federal jurisdiction. Nevertheless, the Sixth Circuit once again found that because the wetlands were separated from a tributary of navigable waters by only a manmade berm or barrier, they qualified as “adjacent wetlands” under the Corps’ regulations, and therefore were subject to federal jurisdiction.
The Plurality Opinion
The supreme court’s plurality decision authored by Justice Scalia, and joined by chief justice Roberts and justices Thomas and Alito, disagreed with the holdings of the sixth circuit. In rejecting the Corps’ broad interpretation of its own regulations, the plurality opinion determined that, “the phrase ‘waters of the U.S.’ 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] fedlakes.’” Therefore, according to the plurality, “the expansive interpretation of ‘waters of the U.S.,’” as endorsed by the Corps, was not “based on a permissible construction of the statute” and extended the phrase “beyond parody.”
After doing away with the Corps’ broad interpretation of “waters of the U.S.,” the plurality then turned to the issue of adjacency to determine the validity of federal regulation of remote wetlands based on the presence of a hydrologic connection to a “water of the U.S.” Relying upon the supreme court’s precedents in U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), the plurality found that “only those wetlands with a continuous surface connection to bodies that are ‘waters of the U.S.’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by [the CWA].” The plurality therefore concluded that to establish “wetlands such as those at the Rapanos and Carabell sites are covered by [the CWA] requires two findings:” (1) “that the adjacent channel contains a ‘water of the U.S.’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters);” and (2) “that the wetland has a continuous surface connection with that water, making it difficult to determine when the ‘water’ ends and the ‘wetland’ begins.”
Despite justice Scalia’s attempt for the supreme court to adopt a more limited interpretation of the federal CWA jurisdiction, he apparently could not find the fifth agreeing vote in justice Kennedy. As a result, justice Kennedy flexed his “swing vote” muscles and issued a concurring opinion that may become the most carefully reviewed, if not cited, ruling in environmental law.
The conflicting opinions of the plurality, justice Kennedy, and the dissenting justices fail to provide practitioners clear legal guidance in advising clients on the extent and authority of the Corps’ jurisdiction over remote and/or isolated wetlands. As a result, the only real hope for a solution to the morass of legal interpretations may be congressional intervention. Unfortunately, though, in light of the lack of political will to fix this problem, the current situation should continue for some time, requiring reliance on future judicial interpretations of the supreme court’s decision in Rapanos and Carabell.
Justice Kennedy’s Concurring Opinion In providing his concurring fifth vote on the judgment only, justice Kennedy drafted a complex opinion finding that the Sixth Circuit had correctly relied on the “significant nexus” test developed in SWANCC. Nevertheless, justice Kennedy concluded that the Sixth Circuit failed to consider all of the requisite factors under SWANCC in determining if a “significant nexus” existed between the wetlands at issue and the distant navigable waters to which they were allegedly adjacent. In evaluating the nexus between the areas, justice Kennedy determined that the Sixth Circuit did not account for the CWA’s stated purpose of “restoring and maintaining the chemical, physical and biological integrity of the nation’s waters.” On that basis alone, justice Kennedy concurred with the judgment of the plurality of the court, and, yet, issued his own opinion interpreting the CWA’s authority over remote wetlands.
Pursuant to justice Kennedy’s opinion, “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 more readily understood as ‘navigable.’” When the wetlands “effect on water quality is speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’” For non-navigable waters, however, justice Kennedy deemed the existing standards and regulations inadequate. To correct the deficiency, justice Kennedy demanded that the Corps identify “categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable water, or other relevant considerations, are significant enough that the wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.” In the absence of such regulation, “the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries.”
Dissenting Opinion
In a strongly-worded dissenting opinion authored by justice John Paul Stevens, and joined by justices Souter, Ginsburg and Breyer, the dissenting justices argued that the plurality had cast aside “more than 30 years of practice by the [Corps].” The dissenting justices also opined that the plurality opinion “disregards the nature of the congressional delegation to the [Corps] and the technical and complex nature of the issues at stake.” Contrary to the plurality and concurring opinions, the dissenting Justices argued that wholesale deference to the Corps was appropriate.
Conclusion
The conflicting opinions of the plurality, Justice Kennedy, and the dissenting justices fail to provide practitioners clear legal guidance in advising clients on the extent and authority of the Corps’ jurisdiction over remote and/or isolated wetlands. As a result, the only real hope for a solution to the morass of legal interpretations may be congressional intervention. Unfortunately, though, in light of the lack of political will to fix this problem, the current situation should continue for some time, requiring reliance on future judicial interpretations of the supreme court’s decision in Rapanos and Carabell.
