The Supreme Court Muddies the Waters in Rapanos

By Edward B. Witte

Property owners, developers, environmental advocates, and government regulators were watching closely this summer as the U.S. Supreme Court prepared its significant decision in the case of Rapanos v. United States (Rapanos), 126 S. Ct. 2208 (2006). Representing the culmination of twenty years of regulatory disputes, the case held the promise of resolving substantial differences of opinion across the country regarding the reach of federal jurisdiction over certain “isolated wetlands.”

On one side, property owners and developers blamed the federal government and the U.S. Army Corps of Engineers (Corps) for interfering with private property rights by claiming jurisdiction over “every puddle on every property.” From the opposite perspective, the Corps asserted that its exercise of regulatory discretion complied with its legislative directive to protect the “waters of the United States.”

Much to nearly everyone’s surprise, the Supreme Court effectively entered a “no decision” in the Rapanos case and in its companion case, Carabell v. United States Army Corps of Engineers. The Court split 4–1–4, with Justices Scalia, Thomas, Alito, and Chief Justice Roberts writing the Court’s plurality (lead) opinion, Justice Kennedy writing the concurring opinion (by which the decision will be remembered), and Justices Breyer, Souter, Ginsburg, and Stevens penning the dissenting opinion.

Rapanos did not resolve the jurisdictional dispute; instead, it confirmed the vitality of the dispute, to be litigated case-by-case, for years to come. As discussed in greater detail herein, the Supreme Court manufactured a technical, scientific standard for when an isolated wetland is sufficiently connected to other regulated surface water to justify federal jurisdiction. Environmental lawyers and consulting wetland scientists can celebrate this outcome, but landowners and government regulators had hoped for more.

Background on Rapanos and the Federal Wetlands Program

At issue in Rapanos was the extent to which the federal government, acting through the Corps, could include wetlands with limited hydrologic connection to other, more traditional waters of the United State, under the Clean Water Act’s (CWA) section 404 permitting program.

Rapanos owned a 175-acre parcel near Traverse City, Michigan, which he planned to prepare and sell for development. Rapanos learned that certain parts of his property were wetlands, because of the presence of water near the ground surface, soil type, and vegetation. Furthermore, because it was determined that his wetlands were “connected” to a navigable water, through a man-made drain and eleven-to-twenty miles of nonnavigable ditches, the United States asserted jurisdiction over the wetlands as well as Rapanos’s plan to clear and fill the wetlands.

Under section 404 of the CWA, with limited exceptions, it is unlawful “to discharge dredged or fill materials” into “navigable waters” without a permit. For the purposes of the wetlands program, “waters of the United States” include “(2) [a]ll interstate waters including interstate wetlands; (3) [a]ll other waters such as intrastate . . . wetlands . . . the use, degradation or destruction of which could affect interstate or foreign commerce . . . ; (5) [t]ributaries of waters identified in . . . this section . . . ; [and] (7) [w]etlands adjacent to waters (other than waters that are themselves wetlands) identified in . . . this section.” 33 C.F.R. § 328.3(a) (the 1977 Corps Definition).

The Migratory Bird Rule

In 1985, the Supreme Court concluded, in the case of United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), that federal wetlands jurisdiction expanded the Corps’s control into “wetlands adjacent to waters.” The Court concluded that a wetland does not need to be “navigable in fact” to be regulated by section 404. As long as the wetland “abuts” the navigable water, it is within the scope of the 1977 Corps Definition.

The next year, the Corps stated in a preamble to certain wetlands regulations that the term “waters of the United States” also included wetlands, “[w]hich are or would be used as habitat by birds protected by Migratory Bird Treaties or . . . as habitat by other birds which would cross state lines.” 51 Fed. Reg. 41,206, 41,217 (1986). This standard, which came to be known as the “Migratory Bird Rule,” empowered the Corps to assert jurisdiction over isolated wetlands with no apparent hydrologic connection to other navigable waters. Because the language of the Migratory Bird Rule referred to isolated waters that “would be” used by migratory birds, nearly any wetland qualified for federal jurisdiction.

SWANCC

In 2001, the Supreme Court reviewed the case of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001). The SWANCC property was a 500-acre former sand and gravel strip mine in northern Illinois, filled with multiple trenches, pits, and depressions. Over time, these depressions had filled with water and water-loving plants. In other words, the landscape was dotted with isolated pockets of wetlands. The Corps asserted jurisdiction over the property, based upon the presence of isolated wetlands that were or would be used by migratory birds.

The owners of the SWANCC property challenged the constitutionality of the Migratory Bird Rule as a basis for federal jurisdiction. The Supreme Court concluded that the Corps did not have the power to deny a permit for activities in an isolated wetland such as the SWANCC site. The Supreme Court rejected the Corps’s argument that Congress had implicitly blessed the Migratory Bird Rule during an earlier consideration of amendments to the CWA. The Court also concluded that the Corps’s broad interpretation of its jurisdiction under the CWA was not a reasonable act by the agency.

In spite of the reach of the SWANCC decision, the Court left intact the Corps’s jurisdiction to wetlands that were otherwise isolated and nonnavigable, but which could be considered “adjacent to, or tributaries and impoundments of, other waters.” As the SWANCC Court stated, referring to Riverside Bayview Homes, “some waters that would not be deemed ‘navigable’ under the classical understanding of that term” remained within the regulatory scope of the Corps’s wetlands program—“it was the significant nexus between the wetlands and ‘navigable waters’” that allowed section 404 jurisdiction to each such isolated wetlands.

Rapanos

When Rapanos cleared and filled his wetlands, the federal and state governments initiated enforcement proceedings against him for filling wetlands subject to the Migratory Bird Rule and also subject to the adjacent wetlands standard. After SWANCC eliminated the Migratory Bird Rule, Rapanos appealed his case to the Sixth Circuit Court of Appeals, which ruled in favor of the government.

The Supreme Court formally vacated the court of appeals decision, with a plurality opinion that was rickety in its composition but laced with acerbic language. Writing for the plurality of conservative Justices, Justice Scalia argued that he would reverse the court of appeals decision because Congress had intended that the scope of federal authority over wetlands be limited to “relatively permanent bodies of water” “connected to traditional interstate navigable waters.” He added that there must be a continuous surface connection between the wetland and the navigable water, making it difficult to determine where the water ends and the wetland begins.

Justice Kennedy wrote an opinion concurring with the four Justice plurality, thereby effectuating the voice of the Supreme Court for the Rapanos case. Kennedy looked back to Riverside Bayview and the conclusion that a wetland does not have to be wet, or immediately abutting a navigable water, to enable federal jurisdiction. In the statement by which Rapanos will be remembered, Kennedy concluded that a sufficient connection, or a “nexus,” exists “if the wetlands . . . significantly affect the chemical, physical and biological integrity of the other covered waters more traditionally understood as navigable.”

Analysis

The Rapanos decision leaves regulated property owners and developers, as well as the regulators, in need of enhanced technical and legal justification for jurisdiction, or the lack of jurisdiction, over isolated wetlands. In some circumstances, the connection or nexus will be obvious—one court has already applied Kennedy’s test from Rapanos to conclude a significant nexus, and federal jurisdiction, was present (Northern California River Watch v. Healdsburg, 457 F.3d 1023 (9th Cir. 2006)). However, for other cases with fact specific circumstances on properties like Rapanos’s, a costly battle of the experts will likely ensue—when the project proponent or the government isn’t happy with the outcome, the lawyers, consultants, and government regulators will finish the fight.

One possible resolution of the Rapanos deadlock could occur if the Corps accepts the stern admonition of Chief Justice Roberts, who reprimanded the agency for effectively creating the confusion that precipitated the Supreme Court’s involvement when the Corps failed to adopt guidance on isolated wetlands. The Corps told a Senate subcommittee on August 1, 2006, that it has no schedule for issuing such regulations, but expects to undertake the effort as soon as possible. Until that time, however, the dispute over the reach of federal wetlands jurisdiction will likely continue.