Supreme Court Limits Federal Wetlands Jurisdiction

On June 19th, the Supreme Court overturned the expansive definition of federal jurisdiction over wetlands claimed by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) under the Clean Water Act (CWA). At the same time, the Court failed to agree on the proper test for determining federal jurisdiction over wetlands adjacent to drainage ditches far removed from traditional navigable waters.

In a 5-4 decision in the consolidated cases of Rapanos v. United States and Carabell v. US Army Corps of Engineers, Nos. 04-1034 and 04-1384 (U.S. June 19, 2006), the Court vacated the judgments of the United States Court of Appeals for the Sixth Circuit that had upheld federal jurisdiction over wetlands connected to traditional navigable waters by a series of drainage ditches and non-navigable creeks, as well as wetlands separated from a drainage ditch by a berm. (“Traditional” navigable waters are those actually navigable waters that are used or could be used in interstate commerce.)

The Court held that the Corps and EPA had exceeded their authority under the CWA and remanded the cases to the lower court for further proceedings, but under different legal theories.

• Four justices (Scalia, Thomas, Alito, and Chief Justice Roberts) joined in the plurality opinion of the Court that the Clean Water Act authorizes federal jurisdiction only over “relatively permanent bodies of water . . . connected to traditional interstate navigable waters,” as well as wetlands that have a continuous surface connection with the waters such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
• Justice Kennedy, while voting to overturn the lower court, urged a remand to determine whether the specific wetlands at issue have a “significant nexus with navigable waters.” Wetlands possess the requisite “nexus” and are jurisdictional “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.’” Wetlands are not jurisdictional where the effects on water quality are “speculative or insubstantial.”
• The four dissenting justices (Stevens, Souter, Ginsburg, and Breyer) would preserve the agencies’ expansive authority over wetlands and waters remotely connected to traditional navigable waters.

Chief Justice Roberts lamented the “unfortunate” fact that “no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act” and, as a result, “lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

Because the Court’s decision does little to clarify the boundaries of the federal wetlands permitting program under Section 404 of the CWA, the Corps and EPA are being urged to promulgate a rule that provides guidance to the regulated community as well as Corps and EPA field staff.

Pending Legislation

In addition, the Court’s split decision highlights the need for Congress to exercise its responsibility to decide and clearly set forth the jurisdictional limit of the Section 404 federal wetlands permitting program. Legislation is already pending in the Congress on this issue:

Baker-Berry Bill. H.R. 2658, the Federal Wetlands Jurisdiction Act, sponsored by Reps. Richard Baker (R-LA) and Marion Berry (D-AR), draws a jurisdictional line that is close to that contained in the Court’s plurality opinion. Under the Baker-Berry bill, federal jurisdiction attaches to traditional navigable waters, tributaries connected to such waters “through a continuous, naturally occurring surface water connection,” and wetlands adjacent to such waters. Excluded from federal jurisdiction are isolated waters and wetlands, including those connected to traditional navigable waters by pipes, culverts, man-made ditches, and ephemeral areas.

Oberstar-Dingell Bill. H.R. 1356, the Clean Water Authority Restoration Act of 2005, is sponsored by Reps. James Oberstar (D-MN) and John Dingell (D-MI). Under this legislation, the word “navigable” would be struck from the Clean Water Act definition of “navigable waters,” and the current definition of “waters of the United States” crafted by the Corps and EPA would be codified in law. The legislation would extend federal jurisdiction to essentially all waters and wetlands in the nation.