Supreme Court Fails to Clarify Limits of Corps’ Wetland Jurisdiction

Rapanos v. U.S., 2006 U.S. LEXIS 4887 (June 19, 2006).

Stephanie Showalter

On June 19, 2006, the U.S. Supreme Court issued its long-awaited opinion in Rapanos v. United States. After months of speculation, the result was rather anti-climatic. Hopes that the Court would resolve once and for all the question of what wetlands may be regulated under the Clean Water Act (CWA) were quickly dashed. No opinion was able to garner the support of a majority of the court. A 4-4-1 split leaves lower courts, lawyers, and landowners with a mess that is certain to fuel additional litigation and may even force Congress’s hand.

“Waters of the United States”
Section 404 of the CWA prohibits the “discharge of dredge and fill material into the navigable waters” without a permit from the Army Corps of Engineers.1 The term “navigable waters” was defined in a less-than-helpful manner by Congress to mean “the waters of the United States, including the territorial seas.”2 The unenviable task of further defining this term falls to the Corps.

Corps regulations define “waters of the United States” to include traditionally navigable waters (waters that are navigable-in-fact or subject to the ebb and flow of the tide) and their tributaries; interstate waters and their tributaries; “all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce;” and wetlands adjacent to any of the above waters.3 Wetlands are defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”4

“Adjacent Wetlands”
Although the original purpose of § 404 was most likely to assure the continued navigability of U.S. waters, it has become the primary regulatory tool to protect the nation’s rapidly diminishing wetlands. The Corps’ assertion of jurisdiction over wetlands under § 404, however, has been controversial and the subject of considerable litigation.

In 1985, the Supreme Court upheld the Corps’ assertion of jurisdiction over “adjacent wetlands.”5 The property in question in Riverside Bayview Homes was eighty acres of low-lying, marshy land abutting Lake St. Clair in Michigan. The landowner had begun filling the property without obtaining a § 404 permit which the Corps asserted was required as the property was a wetland adjacent to a navigable water. The Court recognized that the transition between open water and solid ground is not always abrupt and that, “in determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins.”6 The Court went on to hold that it was reasonable for the Corps to interpret the term “waters of the United States” to include adjacent wetlands given “the evident breadth of congressional concern for protection of water quality and aquatic ecosystems.”7 Due to the key role wetlands play in protecting and enhancing water quality, the court was unable to find “that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the ‘waters’ of the United States – based as it is on the Corps’ and EPA’s technical expertise – is unreasonable.”8

“Isolated Wetlands”
No doubt emboldened by its victory in Riverside Bayview Homes, the Corps began asserting jurisdiction over wetlands that were not adjacent to navigable waters. Under its Migratory Bird Rule issued in 1986, the Corps required § 404 permits for the dredge and fill of intrastate waters “which are or would be used as habitat by birds protected by migratory bird treaties” or by other migratory birds which cross state lines. In 2001, the Supreme Court found that the Corps had gone too far when it interpreted § 404 to confer authority over an abandoned sand and gravel pit in northern Illinois that provided habitat for migratory birds.9 The property in question had been the site of a sand and gravel mining operation and the excavation trenches had evolved into a scattering of permanent and seasonal ponds. The Corps asserted jurisdiction based solely on the presence of migratory birds, as the ponds had no connection to a navigable water.

The Court found that the Migratory Bird Rule was not fairly supported by the CWA. Acknowledging that it had previously upheld the Corps’ jurisdiction over wetlands, the Court stated that “it was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.”10 As there was no connection between the ponds and a navigable water, the Corps could not assert jurisdiction under the CWA.

Hydrological Connection
In the present case, the Court was faced with the Corps’ assertion of jurisdiction over property falling somewhere between the adjacent wetlands in Riverside Bayview and the isolated ponds in SWANCC. In 1989, John Rapanos began filling wetlands on a 54-acre parcel of land in Michigan. The nearest body of navigable water is over ten miles away. The parcel does have a distant hydrological connection, however, because surface water from the wetlands flows into a man-made drain which empties into a creek that flows into a navigable river. In 2004, the Sixth Circuit ruled that the Riverside Bayview “significant nexus” can be satisfied by the presence of a “hydrological connection” and found that the wetland was adjacent to navigable waters.11 Rapanos appealed to the Supreme Court.

The nine Supreme Court justices divided right down the middle, with Justice Kennedy stepping into the pivotal swing vote role previously filled by Justice Sandra Day O’Connor. The four conservative justices, Scalia, Thomas, Alito, and Roberts, held that the Corps does not have jurisdiction over wetlands that are not physically adjacent to navigable waters. The four liberal justices, Stevens, Souter, Ginsburg, and Breyer, would have deferred to the Corps’ expertise and upheld jurisdiction.

Plurality
Justice Scalia wrote the opinion for the plurality and, true to form, focused exclusively on the text of the CWA and found that the Corps had stretched the term “waters of the United States” “beyond parody.” Citing Webster’s New International Dictionary, Scalia argued that “the waters” could only refer to water ‘[a]s found in streams and bodies forming geographic features such as oceans, rivers, [and] lakes.”12 The phrase “waters of the United States,” therefore, could include “only those relatively permanent, standing or continuously flowing bodies of waters ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’”13 Such an extremely narrow definition of “waters of the United States” would significantly curtail the authority of the Corps and eliminate most wetlands from CWA coverage.

Scalia went on to reject the Sixth Circuit’s contention that a wetland may be considered adjacent to waters of the U.S. because of the presence of a hydrological connection. “Only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right . . . are ‘adjacent to’ such waters and covered by the Act.”14 According to Scalia, in order to establish that wetlands such as those in dispute in Rapanos are covered, the Corps must find that: (1) the adjacent channels contain a “water of the United States” and (2) the wetland has a continuous surface water connection.

Because these findings were not made in the present case, the plurality vacated the ruling of the Sixth Circuit and remanded the case to the lower courts to determine “whether the ditches or drains near each wetland are ‘waters’ in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are ‘adjacent’ to these ‘waters’ in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview.”15

Justice Kennedy and “Significant Nexus”
Although Justice Kennedy agreed that the case needed to be remanded to the Sixth Circuit, he disagreed with the plurality’s reasoning because it failed to address the “significant nexus” requirement. Kennedy argues that “the Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.”16 Kennedy states that the requisite nexus would be present “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.”17 Justice Kennedy expressly rejects Justice Scalia’s contention that relative permanence and physical connection are required. “These limitations . . . are without support in the language and purposes of the Act or in our cases interpreting it.”18

In Riverside Bayview, the Corps established that wetlands adjacent to navigable-in-fact waters are ecologically interconnected and therefore satisfy the “significant nexus” requirement. While similar interconnections may be present with wetlands adjacent to major tributaries, Kennedy found that the Corps’ definition of tributary is too vague to assure that the Corps only regulates wetlands which “perform important functions for an aquatic system incorporating navigable waters.”19 “Absent more specific 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.”20 Kennedy concluded that the case should be remanded “for consideration whether the specific wetlands at issue possess a significant nexus with navigable waters.”

The Dissenters
Four justices would have upheld the Corps’ exercise of jurisdiction. Justice Stevens, writing for the dissent, stated that the Corps’ decision to treat these remote wetlands “as encompassed within the term ‘waters of the United States’ is a quintessential example of the Executive’s reasonable interpretation of a statutory provision.”21 Focusing more on the purposes of the CWA than dictionary definitions, the dissent would have deferred to the Corps’ position that remote wetlands with hydrological connections serve important water quality roles. Justice Stevens reasoned that Congress in passing the CWA found it essential to control the discharge of pollutants at the source and the Corps can define “waters” broadly to accomplish this Congressional aim. “The inclusion of all identifiable tributaries that ultimately drain into large bodies of water within the mantle of federal protection is surely wise.”22 The dissent agreed with Justice Kennedy that relative permanence and physical connection are not required, but saw no need to replace the Corps’ bright line rule with Kennedy’s case-by-case significant nexus test.

Bottom Line
The majority of the court rejected Justice Scalia’s two conditions for wetlands to qualify as “waters of the United States.” The real law in the case was therefore made by Justice Kennedy when he sided with the dissenters that relative permanence and a physical connection were not required. The relevant connection is hydrological. Because Justice Kennedy’s opinion states the narrowest basis for the holding, it will control in the lower courts. In fact, the District Court for the Northern District Court of Texas has already applied it.23

Endnotes
1. 33 U.S.C. § 1344(a).
2. Id.. §1362(7).
3. 33 C.F.R. § 328(a).
4. Id.. § 328(b).
5. U.S. v. Riverside Bayview Homes 474 U.S. 121 (1985).
6. Id. at 132.
7. Id.. at 133.
8. Id. at 134.
9. Solid Waste Agency of Northern Cook County U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
10. Id. at 167.
11. U.S. v. Rapanos, 376 F.3d 629 (6th Cir. 2004).
12. Rapanos v. U.S., 2006 U.S. LEXIS 4887 at *29-30 (June 19, 2006).
13. Id. at *40.
14. Id.. at *44 (emphasis in original).
15. Id.. at *70.
16. Id. at *108-9.
17. Id. at *109.
18. Id. at *89.
19. Id. at *111.
20. Id. at *113.
21. Id. at *123.
22. Id. at *151.
23. U.S. v. Chevron Pipe Line Co., No. 5:05-CV-293-C (N.D. Tex. filed June 28, 2006).