On June 19, 2006, the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. ___ (2006), which consolidated two Clean Water Act (CWA) challenges to U.S. Army Corps jurisdiction, vacated and remanded both the Rapanos (04–1034) and Carabell (04–1384) decisions to the lower courts for further consideration. The 5-4 decision resulted in three separate opinions: four Justices voted to severely restrict the scope of the Corps’ CWA jurisdiction, four voted to uphold the Corps’ current jurisdiction, and one Justice, Justice Kennedy, voted to add a new requirement that the Corps must satisfy, on a case-by-case basis, before it can claim jurisdiction.
The Corps’ definition of waters of the United States remains largely intact with the substantial caveat that the Corps will need to make an additional showing that there is a significant nexus between adjacent wetlands and navigable waters in the traditional sense. The views Justice Kennedy expressed in his opinion will effectively become a new, added standard for determining the Corps’ jurisdiction under the Clean Water Act. Under this additional standard, the Corps’ jurisdiction over wetlands "depends on the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense. The required nexus must be assessed in terms of the statute’s, goals and purposes." (Emphasis added.) These goals are to "restore and maintain the chemical, physical and biological integrity of the Nation’s waters."
According to Justice Kennedy, "wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters’ 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 or readily understood as ‘navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters’." (Emphasis added.)
Justice Kennedy’s opinion distinguishes between wetlands that are adjacent to navigable-in-fact waterways and those that are not. When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely upon adjacency to establish its jurisdiction. By contrast, absent more specific regulations, the Corps must establish a "significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to non-navigable tributaries." The extent to which the added test will reduce Corps jurisdiction remains to be determined, but could be substantial in some areas. To the extent these areas will no longer be within the Corps’ jurisdiction, they may still be regulated either by the California Department of Fish and Game or the California State and Regional Water Quality Control Boards, or both.
We anticipate that the Corps and EPA will issue guidance. Nevertheless, at least for the foreseeable future, jurisdictional issues will become more complex, and pending and future delineations will need to be carefully reviewed in light of the new standard.
For more information please contact Robert Uram. Robert J. Uram is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.