FEATURE ARTICLE, OCTOBER 2006

TIDYING UP THE CLEAN WATER ACT
Supreme Court’s decision demands clarification of uncertain boundaries for waters and wetlands.
Mona Bryant

Anyone expecting clarity from two wetlands cases recently decided by the U.S. Supreme Court is disappointed. The Court’s June 19, 2006 decision did not garner a majority or set a bright line standard, leaving uncertainty about the extent of the U.S. Army Corps of Engineers and Environmental Protection Agency authority over waters and wetlands under the Clean Water Act. Despite the absence of a definitive standard, it is clear that a majority of the Court believes that the Corps’ jurisdiction is not without bounds and is willing to set those bounds when the Corps fails to do so.

The Law and Regulations

The Clean Water Act was enacted to restore and protect the nation’s waters. It prohibits the unpermitted discharge of dredged or fill material into “navigable waters.”  The Corps is delegated primary responsibility for implementing the permitting program.

Current agency rules define federal jurisdiction broadly to include traditional navigable waters, certain other waters, tributaries and “adjacent wetlands.”  Adjacent wetlands are those that neighbor regulated waters, even if separated by dikes or similar structures. The Corps has interpreted its regulations to include wetlands with any hydrologic connection, and to define tributaries as anything (e.g., intermittent streams, drainage ditches, storm sewers) that has an ordinary high water mark, even if it is evidenced by something as fleeting as the presence of litter and debris from an annual gully washer.

The Cases and Decision

The Supreme Court reviewed two Michigan cases, Rapanos v. United States and Carabell v. Army Corps. The Rapanos petitioners filled wetland areas that were several miles from the nearest navigable waters, but connected to those waters by ditches and a creek. The Corps pursued the Rapanos petitioners on civil and criminal fronts. The District Court determined that the wetlands were “adjacent,” and the 6th Circuit Court affirmed, finding that there was a hydrologic connection.

In Carabell, the wetlands were adjacent to a drainage ditch, but separated from the ditch by an earthen berm. The ditch drained to another ditch, a creek and ultimately into a lake about a mile away. The Corps asserted jurisdiction over the wetlands and denied a permit. The Carabell petitioner challenged Corps’ jurisdiction. Both the District and the 6th Circuit Courts found that the wetlands were adjacent to navigable waters.

The Supreme Court overturned the lower courts and sent the cases back for further proceedings. While it is clear that a majority of the Court rejected the Corps’ historical use of “any hydrological connection” standard for its expansive jurisdiction, there is not much other common ground except the Court’s frustration, expressed in three opinions, that the Corps had ignored earlier limits set by the Court in failing to adopt new rules.

Four of the Justices would open the door for unpermitted development in wetlands that are not directly connected to water bodies that flow or contain water year-round. This plurality opinion concluded that only waters that are relatively permanent or continuously flowing, and not intermittent, ephemeral, or rainfall drainage channels, are subject to federal jurisdiction. Further, the only wetlands that the Corps should regulate are those that have a continuous surface connection to a regulated water. The mere hydrologic connection standard used by the Corps is not sufficient for jurisdiction.

Justice Kennedy wrote a concurring opinion, which created the majority needed to overturn the lower courts and identified the criteria that likely will be relied upon in future litigation. He rejected portions of both the plurality and dissenting opinions, focusing on the need for the Corps to develop standards to identify the wetlands that deserve protection. The concurrence rejected the notions that all wetlands are protected, no matter how tenuously connected to a water body, and that any water that feeds into a traditional navigable water (eventually) and has any form of ordinary high water mark is regulated. Instead, Justice Kennedy insisted that the Corps show a significant nexus, rather than a mere hydrologic connection, between the wetland or water and the navigable water. He would not limit the Corps as strictly as the plurality and suggested that the wetlands in Rapanos and Carabell could be regulated. However, because the Corps has not adopted rules to reflect earlier Court limitations, the Corps must make case-by-case showings of a significant nexus.

The dissent found federal jurisdiction in both cases based on the broad mandate of the statute, deference that should be given to the Corps’ interpretation, and prior decisions of the Court. Justice Breyer also called for the Corps to “write new regulations, and speedily so.”

The Agencies’ Response and Practical Implications

The agencies have yet to issue guidance or initiate rule-making, the course of action strongly urged by the Court. Shortly after the Rapanos decision, the agencies stated that they would be issuing joint guidance quickly. An early July memorandum suggested that the guidance would make fairly narrow changes, focusing on the justifications used by the Corps in making jurisdictional determinations rather than making meaningful changes to the scope of its jurisdiction.

During an August 1 Congressional hearing, however, the EPA’s top water official indicated that the agency would issue guidance “as soon as possible,” but there is no clear indication of when that will be. During the hearing, the official also conceded that the agencies are not committed to rule-making. The agencies remain resistant to the idea of rule-making, despite the Court’s very clear signal that rule-making is expected.   There is some indication that Congress may be willing to clarify the confusion caused by the decision if no rules are adopted.

In the interim, Corps District Offices throughout the Southeast and across the country have directed field offices not to make jurisdictional decisions pending issuance of guidance. This leaves developers with a tough decision:  either accept and permit the most conservative interpretation of jurisdictional waters and wetlands and move on with the project, or wait for guidance. The former course of action will result in increased front-end costs associated with permitting and mitigation. The latter course could result in significant delay costs.

On the flip side, consultants in the region are finding that some Corps field agents are recognizing the limitations and choosing not to fight over tenuously connected intermittent streams. Therefore, if a project has some areas that clearly lack the required nexus, it is worth pushing to eliminate that portion of the site from permitting. It also is advisable to keep the “significant nexus” standard in mind, to consider including a nexus evaluation in wetlands delineations submitted to the Corps, and to attempt to hold any Corps evaluation of the project to that standard.

Of course, many states are aggressive in asserting jurisdiction even if the Corps does not do so. For example, in the wake of the Supreme Court decision that struck down federal regulation of isolated waters, North Carolina adopted its own regulatory program for those isolated waters and wetlands over which the Corps could no longer assert jurisdiction. Other states took similar actions then, and it is likely that states will assert expanded jurisdiction throughout the country as the Corps’ jurisdiction is further defined and narrowed.

Looking to the future, it is anticipated that the Corps and EPA will continue to be as aggressive as possible in asserting jurisdiction over waters and wetlands, and that there will be increasing litigation over jurisdictional decisions, leaving administrative and federal lower courts to sort it out.

Mona O’Bryant is an attorney with Smith Moore LLP in Greensboro, North Carolina.


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