e-Bulletin: United States Supreme Court Decides Wetlands Cases:

On June 19, 2006, the Supreme Court issued its highly-anticipated decision addressing whether the Army Corps of Engineers has jurisdiction to regulate wetlands. Rapanos v. United States; Carabell v. United States. This was the Court’s most important environmental law decision in recent years. The decision, rather than definitively resolving the Corps’ regulatory jurisdiction over wetlands, was a fractured one that left many unanswered questions, thus virtually inviting more litigation to determine what the Court meant.

Under the Clean Water Act, the Corps has jurisdiction to regulate “navigable waters,” which are defined as “waters of the United States.” The question in Rapanos and Carabell was whether wetlands are “waters of the United States” and thus subject to Corps regulation. This question, in turn, depended on the nature of the connection and relationship of the wetlands to navigable waters. In Rapanos, the wetlands were physically connected to navigable waters, but the connection was remote and tenuous rather than direct and immediate; the wetlands meandered through canals, ditches and streams before reaching a navigable lake located about 20 miles from the wetlands. In Carabell, the wetlands were not connected to navigable waters at all; they were adjacent to a ditch that eventually emptied into navigable waters, but a berm separated the wetlands from the ditch and hence from the navigable waters.

The Corps’ regulations define “waters of the United States” as including not only both navigable and intrastate waters, but also other waters including, among other things, mudflats, sandflats, prairie potholes, wet meadows, playa lakes, and wetlands—and also other wetlands that are “adjacent” to any of these waters. The United States argued in Rapanos and Carabell that “waters of the United States” includes all wetlands that are connected, however remotely, to navigable waters, and also all wetlands that are adjacent to a ditch that empties into navigable waters (even if, as in Carabell, the wetlands water may not reach the ditch and the navigable waters because of the berm). Under the United States’ position, the Corps would have jurisdiction to regulate virtually all wetlands in the nation, except for “isolated” wetlands that the Supreme Court held to be beyond the Corps’ jurisdiction in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”). The Sixth Circuit Court of Appeals upheld the Corps’ regulation of the wetlands in both Rapanos and Carabell.

The Supreme Court in Rapanos and Carabell issued three main decisions, none of which commanded a majority of the Court’s justices. Four justices signed a plurality opinion authored by Justice Scalia that would have substantially limited the Corps’ jurisdiction to regulate wetlands. Four other justices signed a dissenting opinion authored by Justice Stevens that would have broadly upheld the Corps’ jurisdiction to regulate wetlands. Justice Kennedy wrote a solitary concurring opinion that took a middle ground position, and that will be the controlling opinion in applying the Court’s decision in future cases.

The plurality opinion authored by Justice Scalia, which was also signed by Chief Justice Roberts and Justices Thomas and Alito, argued that the term “waters of the United States,” as used in the Clean Water Act, “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, … oceans, rivers, and lakes.’” This term, the opinion argued, does not include channels through which water “flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” The opinion stated that the Corps’ attempt to regulate “ephemeral streams, wet meadows, storm sewers or culverts, sheet flow during storm events, drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert” stretches the term waters of the United States “beyond parody.” In the case of wetlands, the opinion argued, the only wetlands subject to Corps regulation are those with a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands”; wetlands with “only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem ….” The opinion also stated that it is not clear that state and local governments are unable to adequately regulate wetlands and preserve them. The plurality opinion concluded that the lower courts had applied the incorrect standard and therefore that the cases had to be remanded to the lower courts so that they could apply the correct standard.

The dissenting opinion authored by Justice Stevens, which was also signed by Justices Souter, Ginsburg and Breyer, argued that the term “waters of the United States” as used in the Clean Water Act is ambiguous, and therefore that the Court should have deferred to the Corps’ judgment as reflected in its regulations under the so-called “Chevron doctrine,” which requires the courts to defer to agency interpretation of ambiguous statutes. The dissenting opinion also argued that the Court had previously decided the scope of the Corps’ jurisdiction to regulate wetlands in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), which had upheld the Corps’ authority to regulate wetlands “adjacent” to navigable waters. The dissenting opinion argued that the decisions of the lower courts should have been affirmed.

Justice Kennedy’s concurring opinion argued that “waters of the United States” includes not only navigable waters, but also non-navigable waters, including wetlands, that have a “significant nexus” to navigable waters. This “significant nexus” is met, Kennedy argued, 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.’” Conversely, the wetlands would fall outside federal jurisdiction if their effects on water quality are “speculative or insubstantial.” Kennedy stated that wetlands can perform critical functions relating to the integrity of waters, such as pollutant trapping, flood control, and runoff storage. Kennedy also stated, however, that the Corps’ current regulations go too far in authorizing regulation of “drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water-volumes towards it.” Thus, Kennedy stated, the Corps must establish whether a “significant nexus” exists on a “case-by-case basis.” Kennedy stated that the “end result” is that the Corps may have jurisdiction to regulate the wetlands in Rapanos and Carabell, but that the lower courts had failed to apply the proper standard and therefore that the cases had to be remanded.

Justice Kennedy’s concurring opinion is the controlling one because he would join with the four dissenting justices in upholding the Corps’ regulation of wetlands in cases where his “significant nexus” test is met, and would join with the four plurality justices in striking down Corps regulation in cases where his test is not met. Unlike the plurality and dissenting opinions, however, Kennedy’s concurring opinion does not offer clear guidance in determining whether the Corps has jurisdiction to regulate wetlands, but instead requires a “case-by-case” consideration of whether specific wetlands significantly affect the “chemical, physical, and biological integrity” of the waters. Thus, while the plurality and dissenting opinions adopted bright-line tests for measuring the Corps’ jurisdiction, which focused on the nature of the receiving waters, the Kennedy opinion adopted a fact-specific approach based on the effects of individual wetlands on the receiving waters. Since the Kennedy opinion is controlling, the Rapanos and Carabell decision will likely spawn more litigation as the lower federal courts attempt to apply the Kennedy standard to individual cases. The Supreme Court may be called on to decide in a future case whether the lower courts are applying the right standard.

In the meantime, the Corps may attempt to adopt a regulation defining the term “waters of the United States,” in light of the Supreme Court’s decisions in its recent wetlands cases, Riverside Bayview, SWANCC, Rapanos and Carabell . The Corps attempted to adopt a regulation defining this term after the Supreme Court’s SWANCC decision but abandoned the rulemaking effort. Chief Justice Roberts penned a short concurring opinion in Rapanos criticizing the Corps for its failure to adopt a clarifying regulation, stating that this litigation would not have occurred if the Corps had earlier adopted such a regulation. Justice Breyer signed a short dissenting opinion observing that the Kennedy opinion allows the Corps to adopt a regulation defining “waters of the United States” in light of the Supreme Court’s decisions in the wetlands cases, and urging that the Corps do so “speedily.”

Since the Supreme Court failed to reach a majority decision, the Court’s various plurality, concurring and dissenting opinions will not have a binding, precedential effect on the Court in future cases. Thus, if the Court’s future configuration changes, as it recently changed with the addition of two new justices, the Court may once again be called on to decide the scope of the Corps’ jurisdiction to regulate wetlands, and the Court’s decisions in Rapanos and Carabell will not preclude the Court from examining the question anew.

BB&K attorney Rod Walston filed an amicus brief in the Supreme Court in the Rapanos and Carabell cases, representing many western water agencies, and also the States of Alaska and Utah. The brief argued, somewhat similarly to the Kennedy concurring opinion, that federal jurisdiction to regulate wetlands depends on whether the wetlands actually affect the flow or condition of navigable waters.