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Supreme Court Limits Federal Wetlands Jurisdiction
Print PDFHoward Bleichfeld, Van
Ness Feldman Issue Alert
June 21, 2006

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.

###

Based in Washington, DC — with an office in Seattle, Washington — Van Ness Feldman is a nationally recognized law firm specializing in energy, the
environment, natural resources, and infrastructure security. Founded in 1977,
the firm now has more than 75 attorneys and public policy professionals. A
number of our members have served as counsel or chief counsel to congressional
committees with jurisdiction over energy and environmental policy, as well as
senior advisors to Democratic and Republican Members of Congress on those
committees. Others have held high-level appointments in the Department of
Energy, the Department of the Interior, the Federal Energy Regulatory
Commission, and the Environmental Protection Agency.

This document has been prepared by Van Ness Feldman for informational
purposes only and is not a legal opinion, does not provide legal advice for any
purpose, and neither creates nor constitutes evidence of an attorney-client
relationship.

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