July 25, 2006

Supreme Court Limits Reach of US Army Corps of Engineers' Jurisdiction Over Wetlands

Holland & Knight Newsletter
Rafe Petersen

On Monday, June 19, 2006, the United States Supreme Court issued its decision in a significant Clean Water Act (CWA) case. In Rapanos v. United States, No. 04-1034 and Carabell v. United States Army Corps of Engineers, No. 04-1384, the Court was asked to consider whether the CWA’s definition of regulated “waters” extends to ditches, tributaries, isolated wetlands and wetlands adjacent to streams. In issuing its opinion, the Court limited the reach of the United States Army Corps of Engineers’ Clean Water Act authority to regulate wetlands and waters that are not physically connected or abutting traditionally navigable waters or that do not have a significant nexus to the water quality of navigable water. Rapanos was an enforcement action alleging that the developer improperly backfilled three wetlands without a permit. The wetlands were connected to the nearest navigable water (20 miles away) only by means of a manmade ditch. Carabell involved an appeal of a denial of a permit application seeking permission to fill wetlands that were separated from a ditch by a berm that cut off any hydrologic connection between wetlands on the site and the ditch. By a 5-4 decision that split on ideological grounds, the Court reversed and remanded two rulings of the Sixth Circuit of Appeals for further findings consistent with the Court’s ruling.

The plurality opinion authored by Justice Scalia and joined in by Justices Thomas, Alito and Chief Justice Roberts, held that the phrase “the waters of the United States” includes only those “relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described … as streams, oceans, rivers and lakes” and does not include “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Justice Scalia wrote that establishing that wetlands, such as those at the Carabell and Rapanos sites, are covered by the CWA “requires two findings: First, that the adjacent channel contains a Water of the United States (i.e., a relatively permanent body of water connected to traditionally interstate navigable waters) and second that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.” Chief Justice Roberts wrote a separate concurring opinion specifically faulting the Corps for dropping a proposed 2003 rulemaking that “could have developed some notion of an outer bound to the reach to their authority,” opting instead to retain its “essentially boundless view of the scope of its power.”

Justice Kennedy provided the fifth vote to remand the cases, but on a significantly different theory from the plurality. He faulted the plurality for essentially ignoring the Court’s prior decisions in Riverside Bayview and Solid Waste Agency of Northern Cook County (SWANCC) by not addressing the “significant nexus” test for jurisdiction. In doing so, he stressed that the plurality’s exclusive emphasis on permanent hydrologic connection ignores the mandate of the Clean Water Act to “protect water quality and the aquatic ecosystem.” He specifically noted that some intermittent waters such as those in the west “often look more like a dry roadway than a river” and yet flows from such “waters” can cause significant flooding damage during powerful rainfalls. He also took issue with the plurality’s interpretation that ditches are essentially “point sources” and not Waters of the United States, noting that because point sources may carry continuous flows, that fact undermines the plurality’s conclusion that covered “waters” under the Act “may not be discontinuous.” He also criticized the plurality’s failure to give some deference to the Corps’ interpretation but at the same time held that “deference owed to the Corps” does not extend to remote wetlands “that eventually may flow into traditionally navigable waters.” Finally, Justice Kennedy stated that absent more specific regulations, the Corps must establish a significant nexus on a “case by case” basis in seeking to regulate wetlands based on “adjacency to nonnavigable tributaries.”

Justice Stevens’ dissent, joined in by Justices Souter, Ginsburg and Breyer, deferred to the Corps’ historic interpretation of its jurisdiction, noting that it has been in place for more than 30 years and should not be replaced with “a judicially crafted rule distilled from the term significant nexus as used in SWANCC.” He then noted that “to the extent that our passing use of this term has become a statutory requirement, it is categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” The decision is sure to spur considerable debate and likely litigation.

Holland & Knight filed an amicus brief on behalf of the National Stone, Sand & Gravel Association (NSSGA), the American Road and Transportation Builders’ Association (ARTBA), the Nationwide Public Projects Coalition (NPPC), and the City of Victorville, California, that was cited by Justice Stevens as one of only three amicus briefs requesting a ruling that intermittent streams fall outside the Corps’ jurisdiction – one of the conditions adopted by the plurality.

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