The Supreme Court Considers the Reach of the Clean Water Act
May 4, 2006
Lawrence R. "Larry" Liebesman- Washington
On February 21, 2006, the Supreme Court heard oral argument in two consolidated cases, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, that squarely address whether the Clean Water Act (CWA) extends to ditches, channels, vernal pools and intermittent streams and adjacent wetlands that have little, if any, hydrologic connection to traditionally navigable waters. Many of these areas are hydrologically isolated and a great distance from traditionally navigable waters. The CWA does not have any “clear statement” supporting this broad reach. The Act prohibits discharges into “navigable waters” without a permit. The Act defines “navigable waters” as “Waters of the United States, including the territorial seas.” 33 U.S.C. § 1362 (7). Despite this language, the Corps has justified expanding its jurisdiction by defining “Waters of the United States” to cover “tributaries” and “adjacent wetlands.” However, neither the Act nor the Corps regulations define the term “tributary.” For years, the agencies relied heavily on a unanimous 1985 Supreme Court opinion, United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), that upheld jurisdiction over wetlands immediately adjacent to and “inseparably bound up” with Lake Michigan in order to meet the broad goals of the CWA. However, in 2001 the Court, in the 5-4 decision of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), invalidated jurisdiction over isolated waters and wetlands based on migratory bird use, requiring demonstration of a “significant nexus” between a wetlands and a navigable water for jurisdiction. Except for the Fifth Circuit (covering Texas, Louisiana and Mississippi), the government has successfully convinced federal courts that even the most tenuous connection satisfies the “significant nexus” test. This broad reach of federal jurisdiction has created major problems for aggregate producers, who often need to access remote “wet areas” to mine reserves. Neither Congress nor the Administration seems eager to resolve this “morass”. The Court’s acceptance of these two cases provided a real opportunity to clarify the reach of CWA jurisdiction.
The two cases, Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004) and Carabell v. U.S. Army Corps of Engineers, 91 F.3d. 704 (6th Cir. 2004), involved rulings by the Sixth Circuit Court of Appeals upholding CWA jurisdiction over wetlands that are far removed from any traditionally navigable waters. Rapanos involved a federal enforcement action against a developer for filling wetland areas for a proposed residential project in Midland County, Michigan, without a permit. (Under Section 404 (a) of the Act, a permit must be obtained from the Corps for the discharge of dredged or fill material at specified disposal sites). The wetlands in Rapanos were connected to the nearest navigable water (20 miles away) only by means of a manmade ditch, a non-navigable creek and river that ultimately flowed into Saginaw Bay. The Sixth Circuit narrowly interpreted SWANCC and held that such a tenuous hydrologic connection was sufficient under the CWA.
The Carabell case involved an appeal of a Corps permit denial to fill wetlands for a shopping center. The wetlands were separated from a ditch by a berm that cut off any hydrologic connection between wetlands on the site and the ditch. The Carabell case addressed the issue of whether an isolated wetland separated by an upland berm is “adjacent” to a water of the U.S. and can be regulated under the CWA. The Carabell site was bordered by a ditch that flowed indirectly into several other ditches that ultimately discharged into Lake St. Clair in Michigan. The Sixth Circuit also narrowly interpreted SWANCC, holding that the wetlands were “adjacent” to navigable waters even though there was no hydrologic connection.
The February 21 Supreme Court oral argument in Rapanos and Carabell was extremely lively. The Court seemed troubled by the Rapanos argument that no tributaries were covered unless they were directly abutting a traditionally navigable water because to do so would sanction a “dump zone” where toxic materials could be discharged with impunity into non-jurisdictional tributaries – a result that Congress could not have intended. However, the Court was equally troubled by the government’s argument that all tributaries and adjacent wetlands, even those lacking in any hydrologic connection to navigable waters, were covered under the CWA. The Carabell case seemed especially of concern since the wetlands there were separated by a berm from a drainage ditch which then flowed indirectly into several ditches before ultimately discharging into Lake St. Clair. Chief Justice Roberts, Scalia and Kennedy were especially bothered by the Corps argument that a “road drain” could be considered a “water of the United States.” Scalia even commented that it would be “absurd” to cover storm drains because to do so, would be to extend federal regulation of waters essentially to “dry land” in conflict with federalism principles. On the other hand, Justices Souter, Stevens, Bryer and Ginsburg noted that it is virtually impossible to distinguish among different kinds of tributaries and, since the ultimate goal of the CWA was to protect the quality of the nation’s waters, the Corps approach in these cases should be given deference.
It is always difficult to predict how a Supreme Court case will be decided. While Justices Roberts, Scalia and Kennedy seemed sympathetic to the landowners, Justices Bryer, Ginsburg, Stevens and Souter seemed sympathetic to the Government. Justice Alito, sitting for the first time on the Court, only asked one question – whether it was reasonable to regulate abutting wetlands but not tributaries that feed into navigable waters – but otherwise gave no clue on his leaning. As usual, Justice Thomas asked no questions but he tends to follow Justice Scalia on environmental cases. Assuming that the Court votes 5-4 for reversal, the scope of such a holding will be critical. It could range from a narrow ruling upholding jurisdiction over all tributaries except for hydrologically-isolated
wetlands to a broad ruling setting out certain limiting principles and
remanding to the agencies to define “tributary.” It is also possible that
the Court could uphold the government, deferring to the agencies’ position
that all waters and wetlands must be regulated to achieve the goals of the
Clean Water Act. Stay tuned for the decision, expected by the end of the
Court’s term in June.
For more information, e-mail Lawrence R. Liebesman at
lawrence.liebesman@hklaw.com or call toll free, 1-888-688-8500.