In Rapanos v. United States, and its companion case, Carabell v. United States Army Corps of Engineers, consolidated at 547 U.S. (2006), the Supreme Court once again examined the reach of the Army Corps of Engineer’s jurisdiction under the Clean Water Act to regulate “waters of the United States.”
At issue was the Army Corps’ interpretation of waters of the United States to include not only traditional “navigable-in-fact” waters, but also tributaries of such waters as well as wetlands adjacent to such waters and tributaries, even where such wetlands were separated from navigable-in-fact waters or their tributaries by “man made dikes… and the like.” (33 C.F.R. SS 328.3(c).) In both of the underlying cases, property owners sought to fill wetlands on their property in order to prepare for development. In Rapanos , the wetlands at issue have a direct surface-water connection to an intermittent waterway which emptied into a navigable river. Rapanos filled these wetlands on his land without a permit and was facing a civil suit by the Corps over his actions. Carabell, on the other hand, sought, and was denied, a permit to fill wetlands on his land. The Carabell wetlands are separated from a ditch by a berm that ordinarily blocks surface-water flow to the ditch, but 10-year storm conditions or greater can create a surface water flow. The ditch, in turn, is hydrologically linked to a navigable in fact water. The Sixth Circuit upheld the Army Corps assertion of jurisdiction over both of these wetlands.
A divided Court overturned the Sixth Circuit in both cases. Though no opinion gathered a majority, a plurality of Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito, joined by Justice Kennedy, concurring in the judgment, agreed to remand the cases to the Sixth Circuit for further consideration of the jurisdictional issue. Unfortunately, since no one opinion was able to gather a majority, the exact test for determining the issue of jurisdiction remains unclear. The plurality opinion, penned by Justice Scalia established a two-part test for determining when a wetland would be covered by Federal jurisdiction: first, the agency must determine whether the “body of water” to which a wetland is connected is a “relatively permanent” body of water connected to traditional interstate navigable waters; and second, the agency must determine whether the wetland has a continuous surface connection with that water body, “making it difficult to determine where the “water” ends and the “wetland” begins. The definition of what, exactly, constitutes a “relatively permanent” body of water in the minds of the plurality, however, was left undefined. The plurality opined, for an example that a “seasonal river” which flowed for much of the year, but than ran dry for part of the year would be “relatively permanent,” but that a “wash” or “intermittent” or “ephemeral” streams would not.
Justice Kennedy’s concurring opinion rejects the plurality’s requirement that wetlands have a surface-water connection, instead offering that for an area to fall under Federal jurisdiction “the water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” In order to meet this “significant nexus test” Justice Kennedy would have the Corps establish, on a case-by-case basis that wetlands adjacent to non-navigable tributaries “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.’” Like the plurality’s test, however, the details of Justice Kennedy’s test are somewhat vague. For example, Justice Kennedy does not provide much guidance concerning what is required for an action to “significantly affect” navigable waters.
As Chief Justice Roberts points out in his concurring opinion, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.” The most reasonable approach appears to be to use both the plurality’s two-part test and Justice Kennedy’s “substantial nexus” test. Any wetlands that meet the more strict requirements of the plurality’s test would also likely meet the requirements of Justice Kennedy’s test, thus the plurality’s test can be used as a primary threshold test. If a wetland does not meet the plurality’s test, it appears that federal jurisdiction may still be established through the “significant nexus” test. The exact details of the factual requirements to meet either of these tests will need further definition by the courts on a case-by-case basis. One thing is clear – the precise reach of federal jurisdiction over wetlands under the Clean Water Act remains unresolved.
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