August 18, 2006
Organization: Morrison & Foerster LLP
In a long-awaited decision, a majority of the U.S. Supreme Court overturned two Sixth Circuit Court of Appeals decisions finding that certain wetlands constituted “waters of the United States” under the Clean Water Act. Although Justice Scalia wrote a sweeping opinion that would have greatly restricted the Army Corps of Engineers’ jurisdiction, only three other justices joined Scalia’s opinion. Justice Kennedy, who provided the fifth vote needed to overturn the Court of Appeals’ decisions, wrote a separate opinion that would narrow the Corps’ jurisdiction, but not as much as Scalia desired. Without a clear majority opinion, the legal effect of this decision is uncertain. But it does provide valuable guidance on the Corps’ jurisdictional reach over certain bodies of water, such as man-made ditches, desert washes, and ephemeral streams.
The Court’s Rapanos and Carabell decisions (which were combined into one case) involved wetlands lying near ditches or man-made drains that eventually emptied into navigable waters. The Rapanos litigation was an enforcement action brought by the Corps against John Rapanos, who had filled certain wetlands without a Section 404 permit. The Corps claimed that the filled wetlands were jurisdictional based on their connection to man-made drains that ultimately flowed into navigable rivers. The Carabell litigation involved the Corps’ denial of a Section 404 permit to fill a wetland that was separated from a drainage ditch by an impermeable berm. Carabell sued the Corps, arguing the Corps did not have jurisdiction over the wetland. The Corps claimed the ditch was a “tributary” of navigable waters and that the Corps had jurisdiction because the wetland was “adjacent” to this “tributary.”
Section 404 of the Clean Water Act requires a permit from the Corps to fill any of “the waters of the United States.” Relying on Webster’s New International Dictionary for a definition of this term, Scalia concluded that the Clean Water Act covers only relatively permanent, standing or flowing bodies of water, and that the Corps has no jurisdiction over “transitory puddles or ephemeral flows of water.” And in the Rapanos and Carabell cases in particular, the Act does not include channels or ditches through which water flows intermittently or ephemerally, or that periodically provide drainage for rainfall.
Scalia reasoned further that, even if the ditch in Carabell is a jurisdictional tributary, the wetlands on Carabell’s property are not jurisdictional simply because they were located near this tributary. According to Scalia, only those wetlands with a continuous surface connection to water bodies that are “waters of the United States” are covered by the Clean Water Act. Wetlands with only an intermittent, physically remote hydrologic connection to “waters of the United States” lack the necessary connection to create federal jurisdiction.
As noted above, although he sided with Scalia in overturning the earlier court rulings, Justice Kennedy did so for a different reason. Kennedy purported to rely on the Supreme Court’s important wetlands decision in 2001 (commonly known as “SWANCC”) to argue that a wetland is subject to jurisdiction only if there is a “significant nexus” between the wetland and some other, navigable water such as a stream or lake. To prove such a “significant nexus,” the Corps must show that the wetlands in question, either alone or in combination with other similarly situated lands, significantly affect the chemical, physical and biological integrity of other, navigable waters. According to Justice Kennedy, that evidence had not been provided in the Rapanos and Carabell cases.Given the divergent views on the Court, with just as many justices dissenting as those who agreed with Scalia’s reasoning, the ultimate effect of the Court’s decision is far from clear. On the one hand, Scalia’s opinion would create a major paradigm shift in the Corps’ approach to regulating the fill of wetlands, given its disapproval of several aspects of the Corps’ wetlands regulatory program. On the other hand, Justice Kennedy’s opinion would retain the Corps’ regulations and rely on a “significant nexus” test. And, of course, the dissenters would have upheld the government’s position in both cases. As Chief Justice Roberts noted in his brief 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.”