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Supreme Court Decision Brings Wetlands Uncertainty

Kenneth Jost on
Jul 1, 2006

WASHINGTON _ The Supreme Court's splintered decision on wetlands protection is likely to result in more litigation for federal agencies and new attention to California water boards’ expansive jurisdiction over the state’s waters.

In a ruling issued in June, the justices divided three ways in a pair of cases brought by Michigan developers challenging the Army Corps of Engineers’ expansive claims of jurisdiction over wetlands remote from recognized waterways.

A bloc of four conservatives led by Justice Antonin Scalia voted to significantly narrow the Corps’ power to regulate filling or clearing of wetlands, while four liberals voted to uphold the Corps’ current approach.

Justice Anthony M. Kennedy cast the pivotal vote in an opinion only for himself that rejects the Corps’ existing regulations. Instead, Kennedy said the Corps has jurisdiction over a wetland only if it has “a significant nexus” to a navigable waterway.

Under Supreme Court precedents, Kennedy’s opinion in Rapanos v. United States should provide the controlling rule, but experts and advocates on all sides agreed the fractured ruling promises continuing uncertainty and litigation.

“The decision introduced a lot more questions than answers,” said M. Reed Hopper, a principal attorney with the Sacramento-based Pacific Legal Foundation, who argued the case for the two developers before the high court. “There has to be more litigation.”

Hopper called the ruling “a significant victory” because the upshot of Kennedy’s pivotal vote was to set aside the decision by the federal appeals court for Michigan upholding the Corps’ jurisdiction over the disputed wetlands in the cases.

Environmental advocates acknowledged that the ruling leaves the Corps’ authority unsettled. After initial disappointment, however, some saw Kennedy’s opinion as a positive sign for environmental enforcement.

“The bad sign is that it’s going to create enormous administrative headaches,” said Tim Searchinger, a senior attorney with Environmental Defense in Washington. “The good side is that Kennedy accepts in theory every argument that we’ve made for why wetlands adjacent to streams need to be protected.”

In California, the State Water Resources Control Board sent out word on the day of the high court decision that the state’s all-encompassing Porter-Cologne water act may plug any gaps if federal authority is trimmed.

“Our state legal definition of ‘waters of California’ is far more extensive and far more expansive than the federal definition,” said water board spokesman William Rukeyser, citing the act’s operative phrase.

Like the federal Clean Water Act, state law requires a permit before filling or dredging wetlands. State and regional boards have essentially followed the Corps of Engineers’ lead on wetland issues, according to Kenneth Bogdan, a lawyer with the land use consulting firm of Jones & Stokes in Sacramento. Rukeyser said water boards may have to “polish up” the state’s procedures if federal jurisdiction changes.

A building industry lawyer agreed on the broad reach of California law, but warned of likely new controversies if the state and regional water boards step into the breach left by receding federal jurisdiction.

“I would not be surprised if there’s a legal challenge to the state board’s interpretation of their authority to regulate wetlands as expansively as they have articulated it to be,” said Paul Campos, general counsel for the Home Builders Association of Northern California.

Regulations issued by the Corps of Engineers dating to 1977 define its jurisdiction to cover any wetlands “bordering, contiguous or neighboring” to a navigable waterway or tributary. The high court’s liberal bloc, led by Justice John Paul Stevens, said the regulation was a permissible interpretation of the Clean Water Act’s provisions.

In his opinion, Scalia said the Corps’ definition went “beyond parody” to cover everything from storm drains and ditches to topographical features dry most of the time. As a narrower test, Scalia said a wetland should be covered only if has a “continuous surface connection” to a “relatively permanent, standing, or continuously flowing” body of water.

In his opinion, Kennedy faulted Scalia for adding new tests not found in the statute, but chided Stevens for failing to limit the definition of “navigable waters” at all. Kennedy said his “significant nexus” test would be met “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.”

Significantly, Kennedy suggested that the wetlands in both of the Michigan cases might meet his test. In his opinion, Stevens noted the possibility that a wetland could be covered if it met either Kennedy’s or Scalia’s test.

Barbara Vlamis, who has worked on California vernal pool issues extensively as executive director of the Butte Environmental Council, called Kennedy’s test “reasonable” while sharply criticizing Scalia’s definition as “narrow and myopic.” Protecting “ephemeral wetlands” is necessary to avoid “severely degraded watersheds and tributaries,” she said.

Environmental experts as well as a government lawyer agreed, however, that Kennedy’s “significant nexus” test would mean more work for the Corps of Engineers to justify its jurisdiction on a case-by-case basis. “It’s going to be a mess in a discrete number of cases,” said Malcolm Stewart, an assistant solicitor general who helped write the government’s brief in the case.

Bogdan noted that applying either of the tests poses special difficulties in California and other parts of the West, where water channels are often dry for parts of the year. “This is a land that’s filled with different kinds of wetland water resources where the hydrological connection to a traditional waterway is challenging,” he said.

In his opinion, Kennedy, a native Californian, noted that the Los Angeles River “often looks more like a dry roadway than a river,” but has periodic releases of “powerful and destructive” volumes of water.

For their part, critics of the Corps of Engineers’ approach saw the ruling as a message to the agency to cut back rather than try harder to claim jurisdiction over wetlands with tenuous connections to recognized waterway. “It’s time for the federal government to take a step back and heed the admonishment in the [Clean Water Act] to defer to local and state regulators in their role on land use decisions,” Campos said.

Kennedy in his opinion and two other justices in separate opinions urged the Corps to try to write rules defining its jurisdiction more precisely. Chief Justice John G. Roberts Jr., who voted with the conservative bloc, noted that the Corps had opened a rulemaking process following the court’s 2001 decision in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168 (see CP&DR Environment Watch, May 2001, CP&DR Legal Digest, February 2001). That decision barred the agency’s jurisdiction over “isolated” wetlands. The rulemaking process “went nowhere,” Roberts said.

Liberal Justice Stephen G. Breyer delivered a similar message. “Today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so,” he said.

The Case:
Rapanos v. United States, No. 04-1034, 06 C.D.O.S. 5260, 2006 DJDAR 7661. Filed June 19, 2006.
The Lawyers:
For Rapanos: M. Reed Hopper, Pacific Legal Foundation, (916) 419-7111.
For the U.S.: Paul Clement, solicitor general, (212) 514-2203.

Contributing Editor Kenneth Jost, a former editor of the Los Angeles Daily Journal, is Supreme Court editor for CQ Press.

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