The Impact of Recent Supreme Court Decisions on Federal Jurisdiction of Streams. Gary E. Freeman 1 F. ASCE PhD, PE, D.WRE

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1 The Impact of Recent Supreme Court Decisions on Federal Jurisdiction of Streams Gary E. Freeman 1 F. ASCE PhD, PE, D.WRE Abstract The relatively recent U.S. Supreme Court case that was expected to reduce confusion and shed some light on the jurisdiction of the Corps of Engineers and EPA over wetlands and streams in the United States has primarily resulted in confusion and frustration on the part of both regulators and those being regulated by the agencies. The Supreme Court decision had something for everyone except a clear conclusion of what should be included as Waters of the United States. This lack of clear guidelines or a bright line test has led to new guidance from the Corps that attempts to apply the muddy conclusions of the Rapanos decision. The decision from Rapanos is evaluated herein and the decision presented in a way that is (hopefully) more clearly understood than the three conflicting opinions contained therein. Tables have been developed that can be used to help navigate the already muddy waters of determining which streams and wetlands are jurisdictional and which are not. Introduction An article entitled Federal Regulations of Wetlands in the Aftermath of the Supreme Court s Decision in SWANCC v. United States was published in the Journal of Hydraulics in September of 2002 (Freeman and Rasband, 2002). Since that time courts across the United States have had a chance to interpret the decision and the Corps and EPA have had the opportunity to make decisions based on the SWANCC decision. As a result of this application of the law two decisions were grated review or certiorari by the United States Supreme Court. The two decisions were Rapanos v. United States and Carabell v. United States. The review at the Supreme Court level was combined into one and the cases are usually simply referred to by the Rapanos v. United States name. The decision of these cases lacked a majority opinion and was decided by the concurrence of Justice Kennedy. The fact that he agreed with the majority part of the time and the minority some of the time further complicated understanding and 1 President, River Research & Design, Inc., 1345 E Spur Ave, Gilbert, AZ 85296, PH (480) , FAX (480) , E mail: freeman@r2d eng.com

2 applying the decision. The three main opinions will be discussed briefly so as to gain an understanding of the complexity and uncertainty in regulating in the post Rapanos world of jurisdictional limits. Hopefully some clarity can be developed based on the decision so as to apply it at the engineering level. Brief History What is known as the Rapanos case actually contained two cases that both arose out of actions in Michigan. The cases are similar in that they both involve wetlands that are connected to traditional navigable waters (TNW) of the United States while some are directly on traditional navigable waters and some are remotely connected. Rapanos. The first the Rapanos case was summarized by the plurality as involving 54 acres of land with sometimes saturated soil conditions with the nearest navigable waters being 11 to 20 miles away at four different sites. Mr. Rapanos was notified that the area was considered waters of the United States but he filled the area anyway. Twelve years of litigation later the matter came before the Supreme Court. Rapanos was facing 63 months in Federal prison and hundreds of thousands of dollars in fines for his violation of the Clean Water Act. Justice Kennedy in his concurrence gives a much better description of the Rapanos case. Included in the action were wetlands at three sites near Midland, Michigan. The sites are as follow: The Salzburg site (230 acres / 28 acres of wetlands), Hines Road site (275 acres / 64 acres of wetlands) and the Pine River site (200 acres / 49 acres of wetlands). All three sites were connected to Lake Huron by surface water connections. At the Salzburg site Rapanos wanted to construct a shopping center and was informed that wetlands existed. He hired a wetlands consultant who identified between 48 and 58 acres of wetlands. Rapanos apparently didn t like the report and allegedly threatened to destroy the consultant unless he eradicated all traces of his report. He also apparently refused to pay him unless and until he complied. He then ordered $350,000 of earthmoving and landclearing work that filleed in 22 of the 64 wetland acres on the Salzburg site. (Rapanos Kennedy Opinion) He also filled 17 and 15 acres of wetlands at the Hines Road and Pine River sites respectively. He was given a Cease and Desist order by the state and EPA officials. Carabell. The second case was the Carabell case involving wetlands that were separated from a man made drain by a 4 foot wide impermeable berm. It does allow occasional overflow to the ditch. The Plurality described the condition as

3 follows: The ditch empties into another ditch or a drain which connects to Auvaes Creek, which empties into Lake St. Clair. The wetland is thus disconnected from a drainage ditch that then eventually leads to a traditional navigable water. It was held to be adjacent to navigable waters by the lower courts. Justice Kennedy again gives a better description revealing that Carabell involved a parcel shaped like a right triangle containing 19.6 acres of which 15.9 were considered forested wetlands. The hypotenuse of the triangle runs along a manmade berm that separates the property from a ditch. The berm ordinarily, if not always, blocks surface water flow (Rapanos Kennedy Opinion at p. 7) from reaching the ditch. The administrative hearing, however determined that the berm overflowed somewhere around a 10 year storm event. The ditch on the other side of the berm flows year round and empties into Lake St. Clair which is on the U.S. Canadian border (an International Water). The Carabells wanted to fill the wetland and construct 130 condominium units. After an administrative hearing at the state level the administrative judge ordered the MDEQ to allow 112 units. The EPA objected and jurisdiction was transferred to the Corps who determined the area was jurisdictional. The subject action followed. Decision The decision what there was of one with four justices on one side, four on the other and one agreeing in the finding but disagreeing on the basis, left even more confusion about what are waters of the United States than existing previously. The plurality saw the problem as a matter of simply finding where the water ended and the land began. (MacDougal, 2008) Justice Kennedy in his opinion indicated that the regulation goes beyond the traditional navigable waters (TNW) but presented his own test one liked by neither the plurality nor the minority. His test was one of significant nexus i.e. an impact that was important enough to make a difference or to be important. (MacDougal, 2008). The dissent felt that the Corps and EPA were doing a pretty good job of interpreting the law. They wanted to defer to the Corps expertise on the matter and basically leave them alone to pursue their regulatory duties. The dissent did suggest that if jurisdiction was found based on either the plurality test (where the water ends) or the Kennedy test (significant nexus) then jurisdiction should attach (MacDougal, 2008). A more detailed analysis is probably required to see the completely different approaches and to understand how splintered the Court was on the issue thus the non guidance on how to apply the Clean Water Act on the ground.

4 The plurality stated: In sum, on its only plausible interpretation, the phrase 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 steams[,]... oceans, rivers, [and] lakes.... The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The plurality further held that the question is where the water ends and the land begins as the test of jurisdiction not whether the wetland is near a navigable water or simply connected at times. They stated it as thus:... establishing that wetlands... are covered by the Act requires two findings: First that the adjacent channel contains a wate[r] of the United States, (i.e. a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins. This created several new terms and further uncertainty. The relatively permanent waters i.e. water that flow at least seasonally or for several months at a time and continuous connection. Does this mean that at low water there must also be a connection? Based on their discussions it would appear to be so. Justice Kennedy concurred in the final decision but not in how he arrived at the conclusion. He opted for a significant nexus test that was used in SWANCC. He concluded that the plurality s opinion with regards to permanent waters made no sense. He argued that the smallest permanent trickle would thus be regulated but that the torrents thundering at irregular interval through otherwise dry channels would not (Rapanos Kennedy at p. 12). He cites the Los Angeles River as an example of something that may not count under the plurality s approach but which would have significant water quality impacts when it flowed. He found that the Corps can indeed interpret the regulations to include intermittent streams where there is a significant nexus or connection/impact on traditional navigable waters. The dissent reasons as follows:

5 1) Corps determined that wetlands adjacent to tributaries preserve quality of nations waters by, among other things, providing habitat, keeping excessive pollutants and sediments out of streams, and reducing flood peaks. 2) Thus wetlands can reasonably be found to meet goals of clean water act. The dissent felt that the Corps had the expertise to make the determination and that this was preferable to the Court trying to legislate what constituted waters of the US. Table 1 shows the various approaches of the justices to the decision. Table 1. Comparison of Views of Supreme Court Justices. Factor Plurality (Scalia) Kennedy Minority (Stevens) Tranditional Navigable Waters Relatively Permanent Waters Yes Yes Yes Yes Yes Yes Non Relatively Permanent Waters No If have Significant Nexus on TNW Yes Ditches, Swales, erosional Features No No Let Corps Decide Seasonal Rivers Yes Significant Nexis Yes Continuous Surface Connections Yes Significant Nexis Yes Merely Adjacent No Significant Nexis Yes Typically Dry Channels No Significant Nexis Let Corp Decide The impacts of this decision, as with the SWANCC opinion, reach a large number of the waters defined in the Corps regulations as being Waters of the United States. This is shown in Figure 2 which is taken from Freeman and Rasband (2002) and updated to show how many areas are again impacted. The numbers and types of water impacted here are much broader than those impacted under SWANCC and, in the Western United States may impact most of the areas regulated by the Corps.

6 Table 2. Decision Impacts on Waters of US defined in 33 CFR 328.3(a) Updated from Freeman and Rasband CFR 328.3(a) Wetlands / Water Unaffected By SWANCC (Column 1) (1) Currently used, Used in Past or Susceptible to use in interstate or foreign commerce and all waters subject to tides Questionable Impact Case by Case Review (Column 2) Waters Affected by SWANCC (Column 3) Waters Impacted by Rapanos (Column 4) No Impact (2) Interstate Waters and Wetlands No Impact (3) All other waters: intrastate lakes, rivers, streams, (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds where (i) could be used by interstate or foreign visitors, or (ii) fish or shellfish could be taken and sold interstate or foreign commerce, or (iii) are used or could be used for industrial purpose by industries in interstate commerce. (4) All Impoundments otherwise defined as waters of the US (5) Tributaries to waters defined in column (1), rows (1), (2), (4) above (6) Territorial Seas (7) Wetlands adjacent* to waters (themselves not wetlands) in column (1), rows (1), (2), (4), (5), and (6) above Impoundments of waters listed in column (2), row (3) above Tributaries to column (2), row (3) waters above Wetlands adjacent to waters listed in column (2), row (3) above Isolated, intrastate, non navigable waters * Isolated, intrastate, non navigable impoundments Tributaries to isolated, intrastate, non navigable waters Wetlands Adjacent to isolated, intrastate, nonnavigable waters Waters that are not relatively permanent waters (RPW) must have Significant Nexus to Traditional (TNW). Significant Nexus on Traditional (TNW) Significant Nexus on Traditional (TNW) Significant Nexus on Traditional (TNW)

7 What Now? The unclear decision in Rapanos has left not only those being regulated but those regulating under the Clean Water Act in a state of confusion. The Corps has issued new guidance which was characterized as a train wreck in at least one public meeting introducing the guidance to the public. The local Corps staff must now devote much more time to determination of jurisdictional areas and those being regulated cannot currently simply agree that an area is jurisdictional even simple areas have to be analyzed for a significant nexus to traditional navigable waters and the decision justified and reviewed prior to any delineation. This has slowed an already slow jurisdictional delineation process and is a nightmare for the regulators. Courts since the Rapanos decision have applied the newly declared law using differing approaches as can be expected given the uncertain nature of the decision. Even leading attorneys are arguing over what constitutes the decision in the case (of course attorneys will argue over most things). In The United States v. Johnson, 467 F.3d 56 (1 st Cir 2006) they used the Justice Stephens (dissent approach) that either the plurality (where the water ends) or the Kennedy (significant nexus) test could be used to determine jurisdiction. In another case in California, Northern California Riverwatch v. City of Healdsburg, 496 F 3d 993 (9 th Cir. 2007) the circuit court used the Kennedy test by going straight to a significant nexus test and not considering the test of where the water ends. In United States v. Gerke Excavating Inc. the 7 th Circuit also held that the Kennedy test governs (464 F.3d 723 (7 th Cir. Sept 2006)). Other decisions are sure to follow and one of them hopefully will allow the Court to actually decide. There is always hope that Congress will act or the Corps will develop new regulations that clarify the situation but practitioners are probably wondering if any of the potential actions are something to hope for or fear will any of these potential actions clarify or simply further muddy the waters? References Douglas W. MacDougal Clean Water Act Jurisdiction, The Water Report, Issue 47, January 15, 2008, Eugene, Oregon. Freeman, G. E. and Rasband, J. R Federal Regulation of Wetlands in the Aftermath of the Supreme Court s Decision in SWANCC v. United States, J. Hydraulics, Vol. 128, No. 9, September 2002, American Society of Civil Engineers, Reston, Virginia. Rapanos v. United States (2006), 547 U.S. 2006, United States Supreme Court, (Slip Opinion).