INDUSTRY BRIEFS SIDESTEP TRIBUTARY ISSUE IN HIGH COURT WATER ACT CASE

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Date: December 12, 2005 -

Recently filed industry briefs in a Supreme Court case addressing the scope of waters protected under the Clean Water Act (CWA) sidestep the issue of which tributaries with remote connections to navigable waters are protected. Some observers say this could give the court considerable leeway in deciding where to draw the line between protected and unprotected waters.

Industry briefs filed Dec. 2 in the consolidated case Carabell, et al. v. U.S. Army Corps of Engineers, et al. and Rapanos, et al. v. United States show that groups representing different interests affected by CWA jurisdiction -- such as the home building industry, the agriculture industry and wastewater treatment facilities -- do not differentiate between the factual scenarios presented for review in the two cases, and instead support a narrow view of the law’s protections.

“The briefs are based solely on the text of the CWA and don’t get into the tributaries issue,” one attorney says. The source says this approach leaves it up to the the high court to determine where to draw the jurisdictional line, which some attorneys believe will lie somewhere between the types of connections exhibited by the waterbodies in the Rapanos and Carabell cases. Relevant documents are available on InsideEPA.com.

At issue is which waterbodies are subject to CWA protection based on their proximity to so-called “navigable waters.” The Constitution grants Congress the power to regulate navigable waters under its Commerce Clause.

Appellate courts have heard numerous cases addressing this issue since the Supreme Court ruled in 2001 in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers that isolated waterbodies’ whose sole connection to interstate commerce was through the presence of migratory birds were not protected under the CWA.

The SWANCC case led appellate courts to examine numerous other cases involving remote connections to navigable waters to determine how broadly CWA protections could be extended. While most appellate courts have ruled that the CWA applies to waters with the remotest connections to navigable waters, the U.S. Court of Appeals for the 5th Circuit has ruled in two cases that such waters are not protected.

The Supreme Court agreed in October to hear the Rapanos and Carabell cases on appeal from the 6th Circuit in order to further clarify CWA jurisdiction. In Carabell, the 6th Circuit ruled in September 2004 that a wetland separated by a manmade berm from a ditch that connects through tributaries to navigable waters still qualifies for CWA protection, even though there is no hydrological connection between the wetland and the ditch.

In Rapanos, the 6th Circuit ruled in August 2003 in a civil case that non-navigable wetlands that are adjacent to navigable waters are subject to CWA requirements -- even if the wetlands in question are linked to navigable waters by as much as 20 miles of non-navigable tributaries.

Several industry attorneys following these cases say that although the Supreme Court agreed to consolidate them in its examination of the extent of CWA jurisdiction, they present two distinct jurisdictional questions. In the Carabell case, there is no hydrological connection between the wetland at issue and a navigable water, while in Rapanos there is a clear surface water connection, albeit 20 miles away from a navigable water.

The attorneys say a decision to uphold Carabell would represent a more expansive view of water act protection than upholding Rapanos alone because of the acknowledged hydrological connection in the Rapanos case. The sources note that the high court could uphold one case and reverse the other, or reach an intermediate decision, even though the cases have been consolidated.

Some attorneys say industry briefs have skirted the tributary issue in the Carabell and Rapanos cases by not addressing how the particular wetlands at issue eventually reach navigable waters. Instead, they argue more broadly that anything lacking a “significant nexus” to navigable waters is not protected under the CWA. Industry’s failure to differentiate between such connections could make it difficult for the Supreme Court to differentiate between the types of connections in the cases, the sources say.

These attorneys are pointing to a joint brief filed on behalf of CropLife America, the National Cattlemen’s Beef Association, the National Corn Growers Association and other agriculture industry groups that argues CWA jurisdiction is limited to “navigable-in-fact waters” and does not differentiate between hydrological and non-hydrological connections. The brief says, “Whether the wetlands at issue are connected by surface flow to ditches and drains (as in Rapanos) -- or whether those wetlands are adjacent to but do not exchange surface flow with ditches and drains (as in Carabell) -- these wetlands are plainly not adjacent to or ‘inseparably bound up’ with any navigable-in-fact water.”

Also, a joint brief filed on behalf of numerous western water groups, including the Western Urban Water Coalition and the Association of California Water Agencies, argues, “The connection between the wetlands and navigable waters in both cases was highly attenuated, and the distance between them substantial, and there was no ‘significant nexus’ between them.” It also says, “Like the wetlands in SWANCC, they did not . . . .significantly affect navigation or interstate commerce.” The brief does not differentiate between the remote surface water connection in Rapanos and the lack of connection in Carabell, which some observers have said could be a significant factual distinction to the Supreme Court.

Finally, a brief filed on behalf of the National Association of Home Builders does not differentiate between hydrological and non-hydrological connections in arguing that navigability, based on the “significant nexus” test, should consider downstream impact and not merely the nature of the connection between a wetland and a navigable water. The brief says, “A ‘significant nexus’ inquiry in any given case is highly fact sensitive and must consider whether upstream activity in a non-navigable feature causes tangible impact on downstream navigable-in-fact waters.”

Numerous other groups, including the National Association of Realtors, the U.S. Chamber of Commerce, the National Federation of Independent Business and Rep. John Duncan (R-TN), the chairman of the House Transportation & Infrastructure’s subcommittee on water resources & the environment, also filed briefs that raised similar statutory arguments about the definition of “significant nexus” and its relationship to the waterbodies in the two cases.

The first industry attorney says the government’s briefs in the case are due Jan. 13, petitioners’ reply briefs are due Feb. 14, and oral arguments are tentatively scheduled for Feb. 21.

Source: Water Policy Report via InsideEPA.com
Date: December 12, 2005
Issue: Vol. 14, No. 25
© Inside Washington Publishers