On June 19, 2006, in a divided opinion, the United States Supreme Court issued its long-awaited decision in the consolidated Rapanos and Carabell wetlands cases.  See Rapanos v. United States, No. 04-1034, and Carabell v. United States Army Corps of Eng’rs, No. 04-1384, 547 U.S. __ (2006).  At issue in the cases was the reach of the Clean Water Act (Act or CWA), specifically the scope of “waters of the United States” under Section 404 of the Act.  Section 404 requires that a permit be obtained for the discharge of dredged or fill material into “navigable waters.”  33 U.S.C. § 1344.  “Navigable waters” is defined under the Act as “the waters of the United States, including the territorial seas.”  Id. § 1362(7).  “Waters of the United States” has been defined by regulation and case law to include wetlands.
 
Petitioner John Rapanos filled 54 acres of wetlands on property in Michigan without obtaining a permit pursuant to Section 404 of the CWA.  The wetlands at issue were eleven to twenty miles away from the nearest navigable water.  Rapanos was not only found civilly liable for violations of the Act but also was convicted of criminal charges and sentenced to 63 months in prison.  The Carabells, on the other hand, applied for a permit under Section 404 to fill wetlands on property in Michigan.  This permit was denied, and they brought suit against the Army Corps of Engineers (“Corps”), which administers the Section 404 program.

The Supreme Court divided in its opinion on the cases, with a plurality opinion written by Justice Scalia and joined by Chief Justice Roberts and Justices Thomas and Alito.  Justice Roberts also wrote a short, separate concurring opinion admonishing the Corps for not pursuing proposed rulemaking on the definition of “waters of the United States.”  Justice Kennedy wrote a lengthy concurring opinion in which he joined in the decision of the plurality to remand the cases for additional factfinding but not in the plurality’s opinion.  Thus, there is no majority opinion other than the decision to vacate and remand.  Justice Stevens authored a dissenting opinion, in which he was joined by Justices Souter, Ginsburg, and Breyer.  Justice Breyer also wrote a separate dissent.  The result is a fractured opinion under which Chief Justice Roberts believes “[l]ower courts and regulated entities will now have to feel their way on a case-by-case basis.”

In a sometimes strongly worded opinion, the plurality sought to limit the reach of the Act and the Corps’ jurisdiction.  The plurality recognizes that the term “navigable waters” is broader than the traditional understanding of that term but that the qualifier “navigable” is not without significance.  The plurality finds that term “the waters of the United States” cannot bear the expansive meaning that the Corps would give it.  The plurality bases this decision on the fact that the Act does not refer to “water” of the United States.  Rather, “[t]he use of the definite article (“the”) and the plural number (“waters”) show plainly that Section1362(7) does not refer to water in general.” 

Relying on the definition of “waters” in the Webster’s dictionary, the plurality holds that the phrase “the waters of the United States” includes “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as streams[,] . . . oceans, rivers, [and] lakes.’”  This term excludes “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”  The plurality stated that in asserting jurisdiction over ephemeral streams, wet meadows, storm sewers, culverts, overland sheetflow, man-made ditches, and dry arroyos, the Corps had “stretched the term ‘waters of the United States’ beyond parody.”  Id. 

The plurality believes that its definition of “waters of the United States” not only makes common sense but is consistent with the Court’s prior decisions, the terms and structure of the Act, and the purpose of the Act.  According to it, only its definition is consistent with the stated purpose of the Act to preserve and protect the rights of the States to prevent, reduce, and eliminate pollution and to plan the development and use of land and water resources.  By the plurality’s account, the Corps’ reading of the term would bring virtually all planning of land and water resource use and development under federal control.

The plurality then turns to the question of whether a wetland may be considered “adjacent to” remote “waters of the United States” and thus itself a “water of the United States,” because of a mere hydrologic connection to such waters.  The plurality holds that “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”  Wetlands with “only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ lack the necessary connection . . . .”

Thus, the plurality states that establishing that wetlands such as those present at the Rapanos and Carabell sites are jurisdictional requires two findings:  (1) that the adjacent channel contains a “water of the United States,” as defined above (i.e., “a relatively permanent body of water connected to traditional interstate navigable waters”); and (2) that the wetland has a “continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

The plurality notes that its restrictions on the scope of “navigable waters” under the Act will not frustrate enforcement against “traditional water polluters” under Sections 301 and 402 of the Act.  These sections prohibit the “discharge of a pollutant” without a permit under Section 402.  “Discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters” from any point source.  33 U.S.C. § 1362(12).  The plurality cites cases in which courts have held that upstream, intermittently flowing channels themselves constitute “point sources” and  that there can be a violation of the Act when pollutants wash downstream through conveyances into covered waters, even if the pollutants were not discharged directly into covered waters.  Under these cases, the courts have seen no need to classify the intervening conveyances as “waters of the United States.”  The plurality emphasized that to prove a violation, the federal agencies must “prove that the contaminant-laden waters ultimately reach covered waters.” 

In response to arguments that its definition of “waters of the United States” will hamper federal efforts to preserve the Nation’s wetlands, the plurality notes that it was not clear that state and local conservation efforts are insufficient to preserve wetlands.  Moreover, the plurality states that a “Comprehensive National Wetlands Protection Act” was not before it, and the wisdom of such a statute was “beyond [the Justice’s] ken.”

The plurality therefore concludes that the Sixth Circuit applied the wrong standard in determining whether the wetlands at issue were covered “waters of the United States.”  Because of the paucity of the record in both cases, the plurality remanded the cases for a determination under the two-part test set forth above, namely whether the ditches or drains near each wetland are “waters” in the sense of containing a relatively permanent flow, and if they are, whether the wetlands are “adjacent” to these waters because they possess a continuous surface connection.

Justice Kennedy concurs only in the plurality’s judgment to remand the cases for additional factfinding.  In nearly every other respect, however, he disagrees with the plurality’s opinion.  Kennedy disagrees with the plurality’s opinion that “waters” can only refer to relatively permanent, standing, or flowing bodies of water.  In his opinion, intermittent flow can constitute a stream while it is flowing, and it is reasonable for the Corps to interpret the Act to cover the paths of such “impermanent streams.”  Kennedy also disagrees with the plurality’s requirement that to be jurisdictional, wetlands must have a continuous surface connection to other jurisdictional waters.  In sum, he finds the plurality’s opinion to be inconsistent with the Act’s text, structure, and purpose, and to be “unduly dismissive of the interests asserted by the United States in these cases.”  Kennedy also, however, disagrees with the dissenting opinion of Justice Stevens to the extent that it reads the requirement of “navigability” out of the term “navigable waters.”

In Kennedy’s opinion, the Corps’ jurisdiction over wetlands depends on upon a “significant nexus” between the wetlands and traditionally navigable waters.  Wetlands possess  this nexus 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.’”  Kennedy opines that the Corps could assert jurisdiction over wetlands adjacent not just to navigable-in-fact waters but to tributaries of these waters.  Kennedy states that the Corps may choose to identify categories of tributaries that are significant enough that wetlands adjacent to them are likely to perform important functions for an aquatic system incorporating navigable waters.  He dismisses the Corps’ current standard for identifying tributaries, however, through which the Corps deems a water a tributary if it feeds into a traditional navigable water or a tributary thereof and possesses an ordinary high-water mark.  This standard, to Kennedy, is too broad because it would regulate drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes toward it. 

Kennedy finds that, in seeking to regulate wetlands adjacent to navigable-in-fact waters, the Corps may rely on adjacency to establish jurisdiction.  In seeking to regulate wetlands based on adjacency to nonnavigable tributaries, however, the Corps must establish a significant nexus on a case-by-case basis.  Once such a nexus is shown, however, Kennedy finds that it may be permissible to presume covered status for other comparable wetlands in the region. 

Kennedy concludes by finding that the records in the Rapanos and Carabell cases suggest the possible existence of a significant nexus, as he has outlined it.  He appears to reject, however, the notion that a “mere hydrologic connection” will establish the requisite nexus, absent some evidence of the significance of the connection for downstream water quality or the significance of a wetland to the aquatic ecosystem.  He therefore determines that the cases should be remanded for consideration of whether the specific wetlands at issue possess a significant nexus with navigable waters.  Thus, the question he would have answered on remand is different from the questions posed by the plurality. 

The dissent is authored by Justice Stevens and joined by Justices Souter, Ginsburg, and Breyer.  It narrowly defines the questions presented by the cases.  For Rapanos, the only question is whether wetlands adjacent to tributaries of traditionally navigable waters are “waters of the United States” subject to the jurisdiction of the Corps.  For Carabell, the question is whether a man-made berm separating a wetland from the adjacent tributary makes a difference to the jurisdictional determination.  The dissent spends considerable time on the facts of the cases, focusing particularly on the history of the Rapanos case. 

The dissent first argues that “[o]ur unanimous opinion in Riverside Bayview squarely controls these cases.”  Stevens reads Riverside Bayview as holding that the Corps’ decision to assert jurisdiction over wetlands adjacent to, but not regularly flooded by, rivers, streams, and other hydrographic features more conventionally identifiable as “waters” is permissible.  Thus, Riverside Bayview is dispositive of Rapanos and Carabell because, Stevens writes, “the cases before us today concern wetlands that are adjacent to “navigable bodies of water [or] their tributaries.  Specifically, these wetlands abut tributaries of traditionally navigable waters.”  (citations omitted).   Just as the dissent’s statement of the issues presented ignores the question of whether the ditches in these cases are tributaries, this argument, that Riverside Bayview controls, assumes that the ditches at issue in Rapanos and Carabell qualify as tributaries and navigable waters. 

Stevens clearly believes the Corps is entitled to substantial deference in interpreting the geographic scope of jurisdiction.  He explains that deference is proper because “there is ambiguity in the phrase ‘waters of the United States’ and because interpreting it broadly to cover such ditches and streams advances the purpose of the Act . . . .”  He dismisses the plurality’s focus on the reservation of power to the States by stating that the States are given sufficient authority even with broad federal jurisdiction.  Stevens’ primary disagreement with Justice Kennedy is the application of the “significant nexus” test as an additional requirement for the Corps, substantially because it is unnecessary. 

The end of the dissent highlights the odd nature of the split among the Court.  Justice Stevens writes:

It has been our practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate.  That prior practice has, on occasion, made it necessary for Justices to join a judgment that did not conform to their own views.  In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceeding, their respective opinions define different tests to be applied on remand.  Given that all four justices who have joined this opinion would uphold the Corps’ jurisdiction in both of these cases—and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied—on remand each of the judgments should be reinstated if either of those tests is met.

In other words, the dissent urges that lower courts uphold the Corps’ jurisdiction and judgments if any of the tests outlined by the plurality or Justice Kennedy is met.  Of course, the bottom line is, what does this mean to the regulated community?  The tributary system that is subject to CWA jurisdiction clearly extends somewhat upstream of permanently inundated water courses, and wetlands adjacent to all those jurisdictional tributaries are also jurisdictional.  Something less than a “continuous surface connection” between a wetland and “waters” may satisfy the Court’s the definition of “adjacent,” but other than a “significant nexus,” this decision gives little practical guidance.  This opinion will lead to additional litigation.  Certain tests used by some  Corps districts to establish jurisdiction likely will get close attention.  For example, the plurality opinion carries some pointed digs at the 100-year flood plain rule:  “Riverside Bayview likewise provides no support for the dissent’s complacent acceptance of the Corps’ definition of ‘adjacent,’ which (as noted above) has been extended beyond reason to include, inter alia, the 100 year flood plain of covered waters.”

Another outcome of the decision may be a renewed interest on the part of EPA and the Corps in promulgating regulations defining the limits of jurisdiction.  The magnitude of this task and the controversy that would result make this a daunting proposition.  In any event, the divergent opinions will provide the framework for a public debate of these significant legal issues.  For further information regarding this decision, please contact Sharon Mattox of Vinson & Elkins at 713.758.4598 or Kristie Tice of Vinson & Elkins at 713.758.3653.