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Supreme Court Ruling is New, Powerful Factor in Clean Water Act Cases
by Beth Card, NEIWPCC
About a year ago in “Legal Lines,” we provided detailed accounts of two high-profile cases—Rapanos and Carabell—headed to the U. S. Supreme Court. Both concerned Clean Water Act jurisdiction over wetlands and, after months of talk about what the Court would do, the justices finally delivered their decision on June 19. But instead of putting the issues to rest, the conflicting opinions only spawned more talk. The Court has had its say, but this story is ongoing, with no end in sight.
First, the decision. Basically, the Court vacated the decisions of the Sixth Circuit Court of Appeals and remanded both cases back to the appellate court for further consideration of the hydrologic connection between the affected wetlands and a navigable waterway (a connection would make them “waters of the United States” and subject to CWA regulation). But that straightforward ruling was deceptively simple. Wade deeper into the decision, and you see deep divisions.
The justices were divided into three groups—the plurality (meaning their opinion lacked enough votes to constitute a majority, but received more votes than the other opinions), the dissent, and then Justice Kennedy in a stand-alone category. The plurality consisted of Chief Justice Roberts and Justices Scalia, Thomas, and Alito, with Justice Scalia delivering the opinion. The plurality wrote that “…lower courts should determine whether the ditches or drains near each wetland are ‘waters’ in the ordinary sense—containing relatively permanent flow…and if they are, whether the wetlands in question are adjacent to those waters (ditches) in the sense of possessing a continuous surface connection that creates the ‘boundary-drawing’ problem that was faced in Riverside Bayview.” (In United States v. Riverside Bayview Homes (1985), the U.S. Supreme Court justices grappled with the question of where water ends and land begins. In that opinion, Justice White noted that “…between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall short of being dry land…” The Court found that the Army Corps of Engineers’ conclusion that “adjacent wetlands are inseparably bound up with the ‘waters of the U.S’” was a reasonable line of thinking.)
The dissenters—Justices Stevens, Breyer, Ginsberg, and Souter—took a more concrete stand; they would have affirmed the Sixth Circuit and upheld lower court rulings that there was a hydrological connection between the wetlands in question and a navigable waterway.
As for Justice Kennedy, his view on the jurisdiction of certain waterbodies or wetlands systems hinged on whether the specific wetlands at issue possess a significant nexus to navigable waters as outlined in the Court’s 2001 SWANCC decision (in which the Corps’ assertion of federal jurisdiction over certain isolated wetlands was overturned) versus the adjacency and boundary-drawing approach outlined by Justice Scalia. Not surprisingly, Justice Kennedy strongly disagreed with Justice Scalia’s analysis and rejected the plurality opinion as being “inconsistent with the Clean Water Act text, structure, and purpose.” Justice Kennedy declined to join the dissenting opinion written by Justice Stevens because he said it went too far in the other direction and did not give enough importance to the word “navigable” in the statutory sense.
The lack of consensus would seem to leave us in a stalemate. Not exactly. In 1977 a prior Court told us how to handle this situation. In Marks v. United States, the Court ruled that “when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those members who concurred the judgments on the narrowest grounds…” Based on a review of the full opinions released in June, it appears that Justice Kennedy’s opinion will be viewed by the legal community as the holding opinion. In a concurring opinion with the plurality, Chief Justice Roberts was probably exactly right when he opined that lower courts that face similar cases will have to feel their way through them on a case-by-case basis. Which brings us to where we are now.
In several cases the Circuit Courts had put Clean Water Act jurisdictional decisions on hold pending the outcome of Rapanos and Carabell. But with the June decision, it was time for the games to begin in earnest. A lot of activity has been happening in the lower courts, and it is important to note that it’s not just wetlands at stake; Clean Water Act programs as a whole are being reviewed in the aftermath of the June ruling. Let’s take a look at recent developments outside the beltway.
U.S. v. Chevron Pipe Line Co. – U.S. District Court, Northern District of Texas
Chevron was found responsible for an oil spill—an action that can result in civil fines if the spill goes into “navigable waters of the U.S.” To avoid fines, Chevron tried to limit the term “navigable waters” to waters that fall within the traditional meaning of “navigable-in-fact,” meaning you can actually navigate a boat down them. The district court cited the Rapanos plurality, which stated that “intermittent and ephemeral streams—streams whose flow is coming and going at intervals” are not jurisdictional. Ultimately the ditch where the oil had been spilled was not considered jurisdictional and no fines were imposed.
Northern CA Riverwatch v. City of Healdsburg – U.S. District Court, Northern District of California
The environmental advocacy group Northern California Riverwatch alleged that the City of Healdsburg had made unauthorized discharges from its wastewater treatment facility into Basalt Pond, which was formed from an old gravel mining pit along the Russian River. The issue was whether Basalt Pond and/or its surrounding wetlands fell within the definition of navigable waters of the United States. The district court said they did, and therefore a permit for the WWTF was required. The City appealed and the appeal was stayed pending the outcome of Rapanos. In mid-August, the Ninth Circuit Court of Appeals denied the U.S. Supreme Court standard and upheld the district court’s decision. The Ninth Circuit held that the pond is connected to the river and therefore federal water quality standards apply and a permit was required.
United States v. Johnson, 437 F.3d 157 (1st Cir. 2006)
Closer to home for most of our IWR readers is a case that originated on Cape Cod, where a farmer named Charles Johnson used earth-moving equipment to construct, expand and maintain his cranberry bogs. Johnson’s cranberry bogs are located on parcels of land that EPA claims are hydrologically connected to navigable waters. After years of debate, on February 16, 2005, a U.S. District Court judge fined Johnson $75,000 and ordered him to restore 25 acres of wetlands, which was estimated to cost some $1.1 million. Johnson appealed to the First Circuit.
The facts of the case were such that there was undisputed evidence that Johnson’s land is indeed hydrologically connected to the Weweantic River, and the land in question contained wetlands adjacent to tributaries of the Weweantic. As a result the First Circuit concluded in a 2-1 panel decision that EPA reasonably interpreted the CWA to extend jurisdiction over Johnson’s land. After this decision, Johnson filed a motion for rehearing and the First Circuit Court of Appeals took it under advisement pending Rapanos. (Fun fact: Johnson and Rapanos are represented by the same attorney.) On October 31, the First Circuit issued an opinion that concluded that the government may establish jurisdiction using either the Kennedy or plurality test from Rapanos and Carabell. The First Circuit remanded the case for further fact-finding on how the standards should be applied.
While we wait, watch, and study how other lower court decisions play out, federal policymaking is in the works. In congressional testimony this summer, EPA and the Army Corps of Engineers made commitments to fully implement the Clean Water Act consistent with the U.S. Supreme Court opinion. The agencies are working with the Department of Justice to interpret the decision and its impacts on the scope of waters of the U.S. protected under the Clean Water Act. Stay tuned for the next IWR, where we’ll examine what regional experts had to say about this topic at NEIWPCC’s Vulnerable Wetlands Conference on November 9.
Beth Card is NEIWPCC’s Director of Water Quality Programs. She is also a licensed attorney in Massachusetts.