The Supreme Court Considers the Reach of the Clean Water Act

On February 21, the U.S. Supreme Court heard oral argument in two consolidated cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, that addresses the scope of federal jurisdiction under the Clean Water Act (CWA). Specifically, 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. The question of whether a CWA § 404 permit is required to conduct earth moving activities within such areas is highly controversial. The Court’s opinion will resolve the type of hydrologic connection, if any, that such intermittent and isolated waters must have to traditionally “navigable waters” (which is the statutory definition of the Corps’s jurisdiction). This has far-reaching implications for land use and environmental law, because even though many seasonally wet and isolated waters are hydrologically isolated and a great distance from traditionally navigable waters, the Corps considers them important to regulate.

Regulation of “Adjacent” Wetlands and “Tributaries”

The CWA 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). The term “waters of the United States” has been expanded by the Corps to include “lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, . . . the use, degradation or destruction of which could affect interstate or foreign commerce” as well as “tributaries” and “[w]etlands adjacent to waters.” 33 C.F.R. § 328.3(a). The Corps’s regulations define the term “adjacent” as “bordering, contiguous, or neighboring” including “[w]etlands separated from other waters of the United States by man-made dikes or barriers, . . . berms, beach dunes and the like.” 33 C.F.R. § 328.3(c). Neither the Act nor the Corps’s regulations, however, defines the term “tributary.” The type of hydrological connection that is required for a wetland to be considered “adjacent” to a navigable water and for an intermittent stream to be considered a “tributary” has been the subject of numerous lawsuits and enforcement actions.

For years, the Corps relied heavily on a unanimous 1985 Supreme Court opinion, United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), which held that the Corps has jurisdiction over wetlands immediately adjacent to and “inseparably bound up” with traditionally navigable waters in order to meet the broad goals of the CWA. In 2001, however, the Court began limiting the reach of the CWA, overturning the Corps’s jurisdiction over isolated waters and wetlands based on migratory bird use in the 5–4 opinion in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) ( SWANCC). In holding that a non-adjacent, isolated pond that was formerly a sand and gravel mine was not regulated under the CWA, the Court stated that the “term ‘navigable’ has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or have been navigable in fact or which could reasonably be so made.” Id. at 172. The Court clarified that “[i]t was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.” Id. at 167. SWANCC invalidated jurisdiction over isolated waters and wetlands when the link to interstate commerce was “migratory bird use.” The lower courts then struggled with the question of what constitutes a “significant nexus” between a wetland and a navigable water. Except for the Fifth Circuit (covering Texas, Louisiana, and Mississippi), the Corps was mostly successful in convincing the courts that even the most tenuous connection satisfies the “significant nexus” test. Neither Congress nor the Administration seems eager to resolve this morass.

The Rapanos and Carabell Cases

The Court’s acceptance of Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004), and Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004), provides a real opportunity to clarify the reach of CWA jurisdiction.

Rapanos involved a federal enforcement action against a developer for filling, without a permit, wetland areas for a proposed residential project in Midland County, Michigan. The wetlands were connected to the nearest navigable water (20 miles away) only by means of a manmade ditch, a nonnavigable creek, and a 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 the CWA’s prohibition on unpermitted discharges into “navigable waters” extends to nonnavigable wetlands that do not even abut navigable waters and whether jurisdiction is established by “any sort of hydrological connection to navigable waters, no matter how tenuous or remote.” The Carabell site was bordered by a ditch that flowed indirectly into several other ditches that ultimately discharged into Lake St. Clair, 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 Oral Argument

The Supreme Court oral argument in Rapanos and Carabell was extremely lively.

Rapanos’s theory on appeal was that “waters of the United States” only covers traditionally navigable waters and wetlands immediately adjacent to such waters. They asserted that tributaries are excluded because the CWA provides no “clear statement” of such expansion. The Court seemed troubled by this argument, questioning whether such an interpretation would sanction a “dump zone” whereby toxic materials could be discharged with impunity into nonjurisdictional tributaries—a result that Congress could not have intended. The Court, however, was equally troubled with 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. Justices Scalia, Roberts, and Kennedy wondered whether the “road drain” adjacent to the wetlands on the site should be considered a “water of the Untied States.” On the other hand, Justices Souter, Stevens, Breyer, and Ginsburg noted that it is virtually impossible to distinguish among different kinds of tributaries, and because the ultimate goal of the CWA was to protect the quality of the nation’s waters, the Corps’s approach in these cases should be given deference.

Carabell’s theory was that a hydrologic connection, at a minimum, was necessary for jurisdiction over tributaries and that the berm in question cut off any such connection. They argued that this is distinguished from Riverside Bayview Homes, because such wetlands were not “inseparately bound up” with a navigable water, although water allegedly “overtopped” the berm during rain events. Justices Scalia and Stevens seemed to disagree on the hydrologic connection issue. Justice Scalia commented that a hydrologic connection is necessary but not sufficient for jurisdiction and that such a connection is an indispensable element, otherwise it would intrude into state land use control—reserved to the states under the CWA. Justice Stevens, however, suggested that a project could create a hydrologic connection in the future by removing the berm and that might be sufficient to support jurisdiction pre-construction.

With Carbell and Rapanos, the Supreme Court has an excellent opportunity to resolve a very controversial aspect of environmental law. Of course, the Court does not always seize on such opportunities. Although Justices Roberts, Scalia, and Kennedy seemed sympathetic to the landowners, Justices Breyer, Ginsburg, Stevens, and Souter appeared to lean towards 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 which way he was leaning. Assuming that the Court votes 5–4, 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.

 


P R O B A T E   &   P R O P E R T Y
July/August 2006
Vol. 20 No. 4
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