United States Supreme Court Unable to Agree as to Standard For When a Wetland is Subject to Regulation Under the Clean Water Act

By Lee E. Miller and Alix L. Joseph

In a decision that was anxiously anticipated by land use and environmental professionals, the United States Supreme Court issued its decision on June 19, 2006 in the consolidated cases of Rapanos v. United States and Carabell v. United States. Many had hoped this decision would offer a definitive and objective test for the definition of “navigable waters” under the Clean Water Act in order to clarify which waters and wetlands are subject to the Act. In the words of Chief Justice Roberts, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

The Supreme Court was unable to agree on a single rationale as to the standard that should be used in determining whether a particular wetland is subject to the jurisdiction of the CWA, but a majority held the Corps’ regulation was too broad in asserting jurisdiction extending not only to all interstate waters, including interstate wetlands, but to all other waters which could affect interstate commerce, as well as any wetlands adjacent to tributaries to streams or wetlands affecting interstate commerce.

At issue in the cases was whether wetlands lying near ditches or man-made drains that eventually empty into navigable waters of the United States were “waters of the United States” subject to the CWA, such that the petitioners could be held liable under the CWA for discharging pollutants into those wetlands. The trial and appeals courts held that these wetlands were subject to CWA regulation and, accordingly, ruled in favor of the United States. The Supreme Court held that the lower courts, in relying on a regulation promulgated by the Army Corps of Engineers (“Corps”), used the wrong standard to determine if these wetlands are covered “waters of the United States.”

Justice Scalia, writing for four of the five justices in the majority, acknowledged that the Corps’ regulation deliberately sought to extend the definition of “waters of the United States” to the outer limits of Congress’s commerce power under the Constitution. The Court majority held that such broad jurisdictional powers were unfounded. Justice Scalia concluded that water courses which flow only intermittently are not “waters of the United States.” Accordingly, his opinion excluded from jurisdiction any wetland lacking a continuous connection to other jurisdictional waters.

Justice Kennedy, in a separate opinion that concurred only in the judgment, applied a different standard. According to Justice Kennedy, jurisdiction under the CWA should be determined based on whether 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.’” Justice Kennedy believes that such a case-by-case test is necessary in light of the over-breadth of current Corps regulations.

Like Justice Scalia, Justice Kennedy concluded that the trial court did not sufficiently analyze whether the wetlands in question had a “significant nexus” to navigable waters as a basis for jurisdiction. Accordingly, Justice Kennedy agreed the lower court must reconsider its decision.

Four dissenting justices signed an opinion authored by Justice Stevens, contending that the current Corps regulations were reasonable and that accordingly, the Court should defer to the agency’s interpretation allowing most wetlands to be regulated under the CWA.

Without an easily understandable and realistic standard, the average landowner is at risk. Because a majority of the Justices were unable to agree on a single standard, the resulting “Rapanos test” will require a case-by-case factual analysis to determine whether a wetland is subject to federal regulation under the CWA. The Clean Water Act is an important part of the firm’s water and environmental practices. Accordingly, Burns, Figa & Will, P.C., is highly qualified to assist property owners and purchasers with Clean Water Act issues and wetland regulations.

Alix L. Joseph
For more information, please contact Alix L. Joseph at (303)796-2626 or e-mail . Ms. Joseph is an associate with the firm. Ms. Joseph focuses her practice on water law, environmental law, and civil litigation.