How do we decide what is a “Water of the United States”? Rapanos revisited

Ever since the U.S. Supreme Court issued its opinions in Rapanos v. United States in 2006, it has been unclear exactly how the U.S. is to go about evaluating which wetlands and tributaries of navigable waters are subject to federal jurisdiction under the Clean Water Act.  Until recently, the U.S. Army Corps of Engineers asserted federal jurisdiction over wetlands and tributaries even where their connection to open, traditionally navigable waterways were attenuated.  This meant, among other things, that private developers had to obtain a permit from the Corps under Section 404 of the Clean Water Act before taking many actions that would affect these wetlands and tributaries.  Developers complain of delay and hassle from the permitting requirements, while environmentalists believe the requirements are essential to ensure proper protection of wetlands and streams.

The Rapanos case narrowed the Corps’ permitting jurisdiction, but it is still very unclear what the Court requires of the Corps because there was no majority opinion issued in the case.  Prof. Jonathan Adler blogged yesterday on this subject on the Volokh Conspiracy website, arguing (in the wake of a new Sixth Circuit decision interpreting the Supreme Court case) that many lower federal courts are misinterpreting the Supreme Court’s mandate.   I disagree.  He and I engaged in a colloquy in the discussion thread to his post that I recommend for readers interested in this question.

Here’s some background:

The Court issued three opinions:  two opinions were joined by four Justices each, and the third opinion was Justice Kennedy’s alone.  In the absence of a majority opinion, it is left to the rest of us (and lower courts) to discern what the rule will be going forward.

Four Justices agreed that the Corps has broad jurisdiction over wetlands and tributaries, as the Corps has asserted in the past.

Justice Kennedy held that wetlands and tributaries that “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,’ ” are subject to federal jurisdiction.  Because the first group of four Justices would find federal jurisdiction in all cases where Kennedy would find jurisdiction, but not the other way around, the Kennedy test is widely seen as providing the crucial “fifth vote” that defines the scope of federal authority here.

But wait, there’s more.  Justice Scalia, writing for the other group of four Justices (in an opinion generally referred to as the case “plurality”) held that

[E]stablishing that wetlands such as those at the Rapanos and Carabell sites 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.

Justice Scalia explicitly rejected Justice Kennedy’s analytical framework; to Justice Scalia, if there is no “continuous surface connection,” there cannot be federal jurisdiction over a wetland, regardless of whether the factors that Justice Kennedy enumerates are present.

Most courts that have examined the issue of federal jurisdiction over waterways since Rapanos have concluded that a wetland or tributary is subject to federal jurisdiction if either the “Kennedy test” or the “Scalia test” is met.  Typical of the reasoning is the following, from U.S. v. Gerke Excavating:

Thus, any conclusion that Justice Kennedy reaches in favor of federal authority over wetlands in a future case will command the support of five Justices (himself plus the four dissenters), and in most cases in which he concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality), the exception being a case in which he would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapanos dissenters when the balancing approach of Justice Kennedy favors the landowner. But that will be a rare case, so as a practical matter the Kennedy concurrence is the least common denominator (always, when his view favors federal authority). 

(Hat tip to Volokh Conspiracy commenter Applekeys for this quotation.)
Jonathan Adler disagrees with this interpretation of the Rapanos decision, while I agree with it.  Read our competing views and decide for yourself.  Jonathan and I do agree, by the way, that the current federal guidance on implementing Rapanos is inadequate for the task.  Hopefully the new administration will clarify and simplify the rules.

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Reader Comments

3 Replies to “How do we decide what is a “Water of the United States”? Rapanos revisited”

  1. Professor Adler asserts that the lower courts should focus exclusively on the “significant nexus” requirement as articulated by Justice Kennedy. Professor Hetch believes in both the “significant nexus” test and the “relatively permanent” (and adjacency) requirements as articulated by Justice Scalia. I respectfully disagree with both Professors because I believe that lower courts should focus exclusively on the Scalia requirements and stay away from “significant nexus.”

    The Scalia test requires that wetlands directly abut a “relatively permanent water” to be considered “adjacent” and therefore subject to jurisdiction under Section 404 of the Clean Water Act. The Kennedy test would allow wetlands that are not adjacent to become jurisdictional if it can be shown that a significant nexus exists between non-adjacent wetlands and downstream traditional navigable waters. In practice, the Kennedy test is too vague and ambiguous to be useful as a regulatory tool. Interpreting significant nexus is akin to interpreting abstract art – a task which is very speculative, subjective, and emotional.

    A significant nexus may only become apparent when wetlands or other waters are geographically large and are located close to traditional navigable waters. Small wetlands, ditches, ponds, streams and other waters that are located farther inland generally do not have an identifiable and measurable significant nexus. It is often impossible to accurately identify measure, confirm, and verify substantial affects on the chemical, biological, and physical integrity of downstream traditional navigable waters caused by wetlands that are located inland and far removed from navigable waters. From a technical standpoint is normally much easier to demonstrate that no significant nexus exists in such cases.

    By contrast, the Scalia test is an excellent tool because it provides clear and concise guidelines for determining and locating the jurisdictional boundary. Scalia produces consistent results that can be independently verified.

    Significant nexus is a complicated legal theory that attempts to resolve a complex legal dispute, but it has no practical application as a regulatory tool for determining the boundaries of Clean Water Act jurisdiction. The significant nexus test may be a big mistake because it has now become ensconced in the legal sphere and this will likely contribute to continued stalemate in the wetlands regulatory program, less enforcement, and more litigation for many years to come as significant nexus is contested on a case-by-case basis. Wetlands law has always been driven by litigation and significant nexus insures that this practice will continue. By comparison, the Scalia test should not require litigation to interpret and apply.

    The Scalia test should be the starting point of any jurisdictional determination, and the end point, if there is no obvious, apparent, clear, and compelling evidence of a nexus that is physically large and has a major affect on flooding, water chemistry and aquatic life forms, that is significant enough to be visually obvious and measurable. True significant affects can be easily supported with routine and common field measurements, photographs, maps, and quantitative water quality data from wetlands and navigable waters. In the absence of such data any “affect” is probably not “significant” enough to establish CWA jurisdiction.

    Significant nexus is bad news.

    Jim Coody PE
    Houston, Texas

  2. Much like the Supreme Court’s guidance, the above comment is at best clear as mud, skirting around the significant nexus. You said, “the Scalia test should be the starting point of any jurisdictional determination, and the end point, if there is no obvious, apparent, clear, and compelling evidence of a nexus that is physically large and has a major affect on flooding, water chemistry and aquatic life forms, that is significant enough to be visually obvious and measurable.”

    What is “obvious, apparent, clear, and compelling evidence” is not always “visually obvious.” You yourself say, “It is often impossible to accurately identify measure, confirm, and verify substantial affects.” I dont have to pose much of an argument here as your own contradictory words seem to do it for me.

    As most know, springs can come from other surface waters, miles away, via underground aquifers. I recently saw a wonderful documentary called The Unforseen. It focuses on sprawl’s effects on the revered Barton Springs of Austin, TX. Dye traces have conclusively shown that this spring is fed by water that travels many miles of aquifer in only a few days…ie, fast enough to afford little filtering. This is not abstract art.

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About Sean

Sean Hecht

Sean B. Hecht is the Co-Executive Director of the Emmett Institute on Climate Change and the Environment, Evan Frankel Professor of Policy and Practice, and Co-Director o…

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