Supreme Court Decision Addresses Fed's Authority Over Wetlands, But Creates Confusion in the Process

By Christopher L. Reive and Justin D. Gericke

On June 19, 2006, the Supreme Court issued a 4:1:4 plurality opinion in Rapanos v. United States that addresses the reach of federal jurisdiction over wetlands adjacent to navigable waters. Four of the five Justices declared that the term "navigable waters," as used in the Clean Water Act ("CWA"), only refers to permanent bodies of water and that a federal wetland cannot exist unless it is located adjacent to navigable waters based on more than "a hydrologic connection." However, the fifth judge, Justice Kennedy, did not go so far. This is the Court's first significant opinion addressing environmental concerns and the extent of federal power under the Commerce Clause of the US Constitution since it returned to its full complement of Justices.

In Rapanos v. United States, the Court combined two Michigan cases (Rapanos and Carabell) involving wetlands slated for development. In the Rapanos case, the developer filled approximately 54 acres of wetlands without a federal permit and was found liable for wetlands destruction under the CWA. The alleged federal wetlands were connected to various drains and tributaries that flowed into surface waters. The Army Corps of Engineers had alleged that the land qualified as "adjacent" wetlands because it was connected to tributaries of navigable waters of the United States. The Court's record was not clear whether the connections between the wetlands and the drains were continuous or intermittent.

In Carabell, the developer was denied a federal permit to fill approximately 15 acres of forested wetlands in order to construct condominium units. The alleged federal wetland was separated from a drainage ditch by a four foot wide impermeable berm. The ditch emptied into another ditch or drain, which connected to a creek that flowed into Lake St. Clair. The lower court ruled that federal jurisdiction attached because the wetland was adjacent to neighboring tributaries of navigable waters.

The Supreme Court consolidated the two cases, which resulted in a confusing 4:1:4 plurality opinion. Four of the five concurring Justices would define "waters of the United States" as including only those relatively permanent, standing, or continuously flowing bodies of water forming geographic features ordinarily referred to as streams, oceans, rivers, and lakes. Not included in that definition would be channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. In so determining, those Justices would conclude that the presence of a hydrologic connection to surface water is not sufficient to bring a wetland within federal jurisdiction. As a result, they would declare that the Sixth Circuit Court had applied the wrong standard in determining whether the wetlands at issue were subject to federal regulation.

The fifth concurring judge, Justice Kennedy, did not go so far. As a result, it remains to be seen what impact this long-awaited decision will have on the scope of federal jurisdiction over this issue. Because the trial record did not allow the Supreme Court to apply any articulated definition of federal wetlands to the facts in each case, the Court remanded each matter for further proceedings to determine whether the wetlands at issue are "waters" subject to federal regulation. Without a clear majority, however, the lower court's task is without complete guidance. Justice Kennedy's concurring opinion offers a different analysis that conflicts with the plurality opinion written by Justice Scalia.

While appearing to significantly impact federal jurisdiction over adjacent wetlands, the Supreme Court's plurality decision offers little guidance and does nothing to change state jurisdiction over wetlands. Both Oregon and Washington retain and regularly assert jurisdiction over and require permits for removal and fill occurring in waters of the state. Each state defines wetlands in its own way, as included in their definitions of "waters of the state." For example, Oregon defines such waters as including "natural waterways including all tidal and nontidal bays, intermittent and perennial streams, lakes, wetlands and other bodies of water in the state, navigable and nonnavigable." ORS 196.800(14). Such statutory definitions are further developed in both states' administrative rules.

These existing and expansive definitions of "waters of the state" provide the basis for state regulation over filling activities separate from and beyond that supplied by the CWA. So, where wetland regulation has been shared between state and federal programs (such as in Oregon and Washington), the Supreme Court's decision is likely to result in little change as to whether a wetland is regulated. Instead, it will change to whom the regulated community looks for regulation.

The information contained in this DirtAlert is necessarily presented in summary form and should not be relied upon as a substitute for direct attorney consultation. For more information, read the opinion here, contact your own attorney, or call one of the Jordan Schrader Ramis PC attorneys who co-authored this Alert: Justin Gericke or Chris Reive. They can be reached at 503-598-7070.

Published October 2006

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