On June 12, 2006, the Supreme Court issued its decision on the jurisdictional reach of the Clean Water Act. Although the act applies only to “waters of the United States,” EPA and the Corps have asserted jurisdiction over dry washes in the desert, and over wetlands with little or no connection to a navigable-in-fact water. In the consolidated cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, landowners argued that their wetlands were not within the reach of the act.

Before this decision, the courts of appeal had almost uniformly held that “waters of the United States” covers any tributary that has a “hydrological connection” with a navigable-in-fact water, and any wetland adjacent to those tributaries. In cases like Rapanos and Carabell, the tributary linking the wetland to a navigable water was only an artificial side-of-the-road drainage ditch.

Briscoe Ivester & Bazel LLP, in an amicus brief filed on behalf of the Western Coalition of Arid States, argued that the hydrological-connection test goes too far. Because rain falling virtually anywhere on land will eventually flow into a navigable water, the test would define “waters of the United States” to include most dry land. We suggested that the Court should apply a concept first expressed by the Court in the SWANCC decision, and limit jurisdictional waters to navigable-in-fact waters and those that had a “substantial nexus” to navigable waters.

The Supreme Court split 4-1-4 on what is included in the “waters of United States.” The four-justice plurality plus the concurring Justice Kennedy all agreed that the hydrological connection standard was too broad. The five justices, however, did not agree on the standard to be used in determining how far the Clean Water Act extends.

The four-justice plurality concluded that the phrase “waters of the United States” is limited to “relatively permanent, standing or continuously flowing bodies of water” such as streams, oceans, rivers and lakes, and to wetlands with a continuous surface connection with these waters. This “commonsense understanding of the term” did not, in their minds, include intermittent and ephemeral streams. By asserting jurisdiction over wet meadows, storm sewers, sheet flow, artificial drainage ditches, and dry arroyos in the middle of the desert, they said, “the Corps has stretched the term ‘waters of the United States’ beyond parody.” Applying these concepts to the question of which adjacent wetlands were within the jurisdiction of the Corps, the plurality concluded that “only those wetlands 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, are ‘adjacent to’ such waters and covered by the Act.”

Justice Kennedy, however, applied an entirely different standard. He concluded that wetlands are within the jurisdiction of the Clean Water Act if there is a “significant nexus” with navigable-in-fact waters. They “possess the requisite nexus”, he said, “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’.” In contrast, wetlands are not within the jurisdiction of the Clean Water Act when their effects on water quality are “speculative or insubstantial”.

A significant nexus exists, according to Justice Kennedy, for all wetlands adjacent to navigable-in-fact waters. But, like the plurality, he rejected the Corps’ regulation, which “seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water-volumes toward it”. He invited the Corps “to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic ecosystem incorporating navigable waters.” Until it issues new regulations, “the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries.” Because he provides the crucial fifth vote, Justice Kennedy’s test is likely to be the one applied by the lower courts.

What happens now? The significant-nexus test could be applied relatively strictly, so that most wetlands would be found not to have a significant nexus, or relatively leniently, so that even minor or unsubstantiated effects would be considered significant. Some of Justice Kennedy’s comments may suggest that the test should be applied leniently. EPA and the Corps will no doubt be issuing a memo in the not-too-distant future explaining how they understand the decision. Eventually, the agencies or the federal courts may transform the uncertainties of the significant-nexus test into a broad classification rule or a reasonably objective evaluation that can be performed by an independent scientist. Until then, the jurisdictional determination of many wetlands will remain in doubt.

Larry Bazel
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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