CWCWC

Monday, June 19, 2006

The divided Supreme Court ruling on when developers must seek permits to fill wetlands is raising a host of questions about the scope of EPA and the Army Corps' authority under the Clean Water Act (CWA) and is likely to prompt new litigation, legislation and regulatory efforts to clarify the issue, legal observers say.

The high court ruled 5-4 on June 19 in Rapanos et ux., et al. v. United States to remand the case back to the U.S. Court of Appeals for the 6th Circuit to determine whether the wetlands at issue are jurisdictional under the water law. But while a majority of justices voted to remand the case, the justices did not agree on the appropriate legal test for determining whether wetlands should be protected, and did not issue a binding majority opinion on that issue.

Attorneys following the case say the lack of consensus will likely lead to litigation in the lower courts to further define the issue, as well as a new push for Congress to provide clarity. Several industry sources are also calling on EPA and the Corps to draft new regulations that clearly state what is and is not jurisdictional under the CWA.

Four justices -- Chief Justice John Roberts and associate justices Samuel Alito, Antonin Scalia and Clarence Thomas -- said in a plurality opinion authored by Scalia that the CWA extends only to waters that are “relatively permanent, standing or continuously flowing” or to wetlands that are immediately adjacent to such waters.

Four other justices -- Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens -- said in a dissenting opinion written by Stevens that Congress' intent in crafting the CWA was far more comprehensive and aimed at protecting not only wetlands adjacent to navigable waters themselves, but also to wetlands adjacent to tributaries of navigable waters.

And Justice Kennedy wrote an opinion concurring with Scalia's decision to vacate and remand, but for different reasons. Like Scalia, Kennedy says there should be limits on CWA protections for remote waterbodies, but said waterbodies with a “significant nexus” to navigable waters should still be protected. Kennedy says waterbodies can have this nexus if they significantly affect the integrity of navigable waters.

Several observers say Kennedy's opinion will likely carry the most weight in the lower courts, due in part to the Supreme Court’s 1977 opinion in Marks v. Whitney, which held that when a court is split in a plurality, those members who concur “on the narrowest grounds” have the controlling opinion.

As a result, Kennedy's ruling holds sway because it represents the “middle ground between absolute protection and absolute de-regulation,” according to one source.

Kennedy's opinion calls for a case-by-case analysis to determine whether a significant nexus links wetlands to navigable waters, while suggesting that the Corps craft regulations to resolve the issue. “Through regulations or adjudication, the Corps may choose 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 system incorporating navigable waters,” Kennedy says.

Legal experts say it will now be up to the lower courts to decide what kinds of wetland connections constitute “significant nexus” connections under the CWA, and that the issue could eventually reach the Supreme Court again. The lower courts will have “to grapple with what this decision means in practice,” one source says.

But another attorney says it is more likely that EPA or the Corps will issue regulations to clarify the issue because “it has been litigated for 20 years without any real conclusion.”

Several industry groups reiterated that view, saying the court has once again provided regulators with the opportunity to “provide some common sense restrictions to the Section 404 wetlands program and to provide certainty to the regulated community,” according to a lawyer representing a group of developers.

Still other observers say the ruling will almost certainly heighten congressional debate as lawmakers seek to clarify the issue.

While some lawmakers are likely to introduce legislation that would protect remote waters that may no longer be protected, such as ephemeral streams, others may push measures to codify Scalia's narrower view of CWA protections. The ruling “almost seems to beg Congress to provide clarity” on which waters are subject to CWA protections, an environmentalist tracking the issue says.

Senate Environment & Public Works Committee Chairman James Inhofe (R-OK) issued a statement June 19 agreeing that the Supreme Court decision is unclear, saying the ruling “leaves many issues to be resolved.” Inhofe says he plans to work with the administration “to clarify existing federal policy with regard to navigable waters,” but stopped short of saying how he hoped to see the issue resolved.

Several environmentalists say they are already considering their legislative strategy in the wake of the ruling.

Meanwhile, some state officials and environmentalists fear the ruling could drastically scale back the number of waters subject to federal CWA protections and put the responsibility on states to ensure that waters are protected. One state source says the decision sends the signal that “the federal government is backing away from environmental protections every chance they get,” and that “states will probably have to step up and do more . . . to fill the gaps.”

Another state source says the decision “profoundly impairs the ability of the federal government and states to fulfill the goals of the Clean Water Act,” but adds that the “impact will be highly variable.”

The source says while some states, like Wisconsin, have strict rules in place for protecting wetlands, others, like Idaho, have laws that prevent officials from pursuing environmental protections that are more stringent than the federal government's.

The narrow question presented in the case was whether wetlands adjacent to tributaries of traditionally navigable waters are “waters of the United States” subject to federal jurisdiction, and whether a manmade berm separating the wetlands from the tributaries does anything to sever this connection. The high court consolidated two 6th Circuit cases involving Michigan wetlands, Rapanos et al. v. United States and Carabell et al. v. U.S. Army Corps of Engineers, to address these issues.

In Carabell, the U.S. Court of Appeals for 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 only linked to navigable waters by as much as 20 miles of non-navigable tributaries.

These cases follow a host of litigation over the issue aimed at clarifying which waters the CWA protects. The Supreme Court in 2001 heard a similar wetlands case, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, and ruled that isolated ponds whose sole connection to interstate commerce was based on the presence of migratory birds were not jurisdictional under the CWA.

After that case, a number of lower courts heard CWA cases and attempted to provide further clarity by determining whether the law applied broadly to all isolated waters, or if there were some cases where waterbodies with attenuated connections should be protected. Federal appellate courts have generally upheld a broad view of CWA protections, and have issued opinions consistent with the 6th Circuit's decisions in Rapanos and Carabell that remote connections should be protected. -- Matt Shipman and Natalie Baughman

Date: 6/19/2006

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