Supreme Court Addresses Wetlands Jurisdictions With Split Decision

by Rick Hitchcock

On June 19, the United States Supreme Court issued its ruling in two major wetlands cases.  The decisions in Rapanos v. United States and Carabell v. United States Army Corps of Engineers, marked the third time that the Supreme Court has addressed federal regulation of wetlands under the Clean Water Act, which extends federal jurisdiction only to "waters of the United States", which are defined as "navigable waters".  The U.S. Army Corps of Engineers is the lead federal agency in defining and permitting wetlands.

Rapanos and Carabell, along with two previous cases, addressed the extent to which the Corps can assert jurisdiction over wetlands that are remote, to some degree, from bodies of water that are clearly navigable.  In these two cases, the Corps found the areas in question to be wetlands, and the Courts below upheld the Corps' assertion of jurisdiction over the areas in dispute, because they were near tributaries to navigable waters.

There was no majority opinion issued by the Supreme Court in these two cases, but five members of the Court agreed that the case should be remanded to the Sixth Circuit Court of Appeals for further consideration of whether the areas in question were sufficiently adjacent to and connected with navigable waters to justify exercise of federal jurisdiction over them.  Since no more than four Justices joined in any one Opinion, the Courts below will likely try to develop a standard based upon the guidance provided in two of the five Opinions filed in the case.

Justice Scalia on behalf of himself and three other Justices argued that the standard should be "whether the ditches or drains near the claimed wetlands are waters in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are adjacent to these waters in the sense of possessing a continuous surface connection . .  ."  Only if the wetlands met that standard, would Justice Scalia and the three other Justices who joined him defer to the Corps' judgment in defining the wetland boundaries.  

Justice Kennedy, who provided the fifth vote in support of a remand, announced a different standard, requiring a "significant nexus" between the wetlands area and a downstream navigable waters.  Justice Kennedy stated that mere flow of water between the two would not suffice in all cases.  Instead, the connection must be substantial enough to have an impact on the water quality of the downstream, receiving waters.

The Corps is evaluating its position in light of the Supreme Court rulings and has asked for delays in several pending wetlands cases.  Although it is not known whether or how the Corps will modify its approach, the decisions in Rapanos and Carabell emphasize the importance of evaluating the nature of and extent of the connection between possible wetlands and navigable waters.  If suspected wetlands areas are not sufficiently connected with navigable waters, there may be a basis for challenging federal jurisdiction.  Land owners and developers faced with these circumstances should seek additional technical and legal advice to evaluate their options.