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Note: Special Reports are updated periodically here; but are
updated and reported on
Updated: August 7, 2007 Click Here
for details on WIMS Information Service Products Rapanos Supreme Court Decision & Related Activities Important Links
WIMS Articles
Eleventh Circuit Interprets Rapanos
Definition Of "Navigable Waters” -
Oct 24, 2007: Access the complete opinion (click
here). Access WIMS eNewsUSA Blog for
various articles related to Rapanos
(click
here).
Northern California River Watch v. City of Healdsburg - Aug 6, 2007: In the U.S. Court of Appeals, Ninth Circuit, Case No. 04-15442. Access the complete opinion (click here). 2nd House Hearing On Clean Water Act & The Supreme Court - Jul 19, 2007: Access the hearing website with links to all testimony and statements for Part II (click here). ELI Handbook On Clean Water Act Jurisdiction - Jul 18, 2007: Access the 88-page ELI Handbook download site to register and download at no charge (click here). Access a release on the ELI white paper (click here). Access the complete 18-page white paper at no charge, but registration required (click here). House Hearing On Clean Water Act & The Supreme Court - Jul 17, 2007: Access the hearing website with links to all testimony and statements (click here). Access a 16-page background document on the hearings (click here). [Access various posts on WIMS-eNewsUSA Blog]
150 Reps
Sponsor Bill To "Fix" Supreme Ct. CWA Decisions
- May 22, 2007: Click on the title to access the
eNewsUSA Blog post. Access legislative details for
H.R. 2421 (click
here). Access a release
from Representative Oberstar (click
here).
Access a release from NRDC (click
here).
EPA & Corps Issue Wetland Guidance Documents - Jun 5, 2007: Access a joint EPA/COE release (click here). Access the legal memorandum and Q&A document and background information on EPA's website (click here). Access the prepublication copy of FR notice (click here). Access additional documents and a powerpoint presentation on the COE website (click here). San Francisco Baykeeper v. Cargill Salt Division - Mar 8, 2007: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 04-17554, 05-15051. Other amici curiae involved in the case include: Pacific Legal Foundation, National Wildlife Federation, and the U.S. Department of Justice, Environment & Natural Resources Division.
San Francisco
Baykeeper and Citizens Committee to Complete the Refuge
(collectively Baykeeper) filed a citizen suit under the
Clean Water Act (CWA) against Cargill Salt Division and
Cargill, Incorporated (Cargill). Baykeeper alleged that
Cargill discharged pollutants into “waters of the United
States” without a permit. The body of water into which
Cargill allegedly discharged waste is a non-navigable,
intrastate pond (the Pond), not determined to be a
“wetland,” that collects polluted runoff within Cargill’s
waste containment facility located near the southeastern
edge of San Francisco Bay.
The district court
granted summary judgment in favor of Baykeeper after
determining that the Pond qualifies as a “water of the
United States” because it is adjacent to a protected water
of the United States (Mowry Slough). Cargill then brought
the appeal. The Appeals Court said, "Because we conclude
that mere adjacency provides a basis for CWA coverage only
when the relevant
waterbody is a
'wetland,' and no other reason for CWA coverage of
Cargill’s Pond is supported by evidence or is properly
before us, we reverse the district court’s summary
judgment."
In further
discussing the case releation to the Solid Waste Agency
of Northern Cook County v. United States Army Corps of
Engineers (SWANCC), 531 U.S. 159 (2001), and
Rapanos v. United States, 126 S. Ct. 2208 (2006); the
Appleals Court said, "We conclude, therefore, that nothing
in Bayview, SWANCC or Rapanos requires
or supports the view that Cargill’s Pond is a water of the
United States because it is adjacent to Mowry Slough.
Baykeeper contends, however, that the Pond is more than
merely adjacent; it has a nexus to Mowry Slough. It is not
sufficient, however, for Baykeeper simply to make its
individual case; it must establish that it was
unreasonable for the EPA to confine to wetlands the CWA’s
reach to non-navigable waterbodies adjacent to protected
waters. Even on its own terms, however, Baykeeper’s
argument fails. The evidence in support of Baykeeper’s
nexus falls far short of the nexus that Justice Kennedy
required in Rapanos even for wetlands that the
Corps sought to hold subject to the CWA..."
The Appeals Court
noted further, "In short, the 'Adjacent Waters Theory upon
which the District Court based its Jurisdictional Ruling'
does not rely on evidence of tributary status or effect on
interstate commerce. Accordingly, we conclude that these
alternative theories are independent of the 'Adjacent
Waters Theory' and are waived."
The
National Association of Home Builders (NAHB), an amicus
party in the case, issued a release that "cheered the
decision." NAHB President Brian Catalde said, “These
regulatory burdens translate into expenses that increase
the price of homes. We need to stop this bureaucratic
expansion on behalf of our home buyers... We should all
want the same thing: protection for the nation’s water
supply. But the rules about how to achieve that need to
be clear, for the sake of all of us. Let’s keep our
environmental regulations strong, but make them
sensible. Make them consistent. Our nation’s home
builders – and our nation’s home buyers – deserve no
less.”
Access the complete
opinion (click
here).
Access the NAHB release (click
here).
Access WIMS eNewsUSA Blog for various
articles related to Rapanos (click
here) [*Water]
United States v. Johnson
Provides Another Interpretation Of Rapanos - Oct
31: In the U.S. Court of Appeals, First Circuit, Case No.
05-1444. Following the First Circuit's decision in this
case, see United States v. Johnson, 437 F.3d 157
(1st. Cir. 2006), appellants moved for rehearing en banc
(full panel), noting the Supreme Court's grant of certiorari
in United States v. Rapanos, 376 F.3d 629 (6th Cir.
2004). The Appeals Court held the petition in abeyance
pending a decision in that case. Following the decision in
Rapanos v. United States, appellants supplemented
their previous petition. They request that the Appeals Court
grant a rehearing en banc to resolve the conflict between
the panel decision and Rapanos, or, alternately, that the
decision be vacated with prejudice on the ground that the
evidence in the record supports a judgment in their favor.
The government filed a response requesting that the Appeals
Court vacate its previous decision and remand the case to
the district court (Massachusetts). The Appeals Court said
in a 2-1 decision, "After careful consideration, we vacate
and remand for further proceedings consistent with
Rapanos..."
The Appeals Court offers a brief
summation of the Supreme Court decision in Rapanos v.
United States. In their briefs for en banc rehearing,
appellants contended that a rehearing was necessary to
resolve the tension between the panel opinion and
Rapanos. They argued that under either the plurality
opinion or Justice Kennedy's concurrence, a" hydrological
connection" is insufficient to establish jurisdiction,
although they also argued strenuously that the plurality's
test alone should apply. The government argued that
additional factfinding is necessary before the legal
principles articulated in Rapanos can be applied in
this case and opposed the petition for en banc review and
urged the Appeals Court, instead "to vacate the panel's
decision and remand the case to the district court."
The Appeals Court ruled, "We agree
with the government that remand to the district court for
application of the Rapanos standards is appropriate. The
parties presented their cases in the district court without
any awareness of the standards that now apply. They should
now have an opportunity to develop their positions in the
district court with an awareness of these standards.
However, the question of what legal standard to apply is one
of some complexity, and other courts have taken varying
approaches to the issue. We conclude that the United States
may assert jurisdiction over the target sites if it meets
either Justice Kennedy's legal standard or that of the
plurality. We explain our reasoning..."
In explaining, the Appeals Court says, in the months since Rapanos, four courts have applied its legal standards -- two district courts and two courts of appeals [See links below to the WIMS-EcoBizPort Special Report on Rapanos]. The Appeals Court discusses the district court decisions -- United States v. Evans; and United States v. Chevron Pipe Line Co. -- and the other Appeals Court decisions -- Northern California River Watch v. City of Healdsburg (9th Circuit); and USA v. Gerke Excavating, Inc.
The Appeals Court also analyzes the
so-called "Marks directive" that "[w]hen 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 in the judgments on the narrowest grounds," Marks,
430 U.S. at 193 (internal citation omitted). On Marks, the
Appeals Court says the understanding of "narrowest grounds"
as used in Marks "does not translate easily to the present
situation."
In its conclusion, again in a split 2-1 decision, the Appeals Court says on remand, "...the district court should do exactly as Justice Stevens has suggested. The federal government can establish jurisdiction over the target sites if it can meet either the plurality's or Justice Kennedy's standard as laid out in Rapanos." The dissent in the opinion indicates, "I depart from the majority in interpreting what standards Rapanos has established. The plurality's 'hydrological connection' test provides the proper constitutional limit on federal regulation under the Clean Water Act. Although the majority has provided an able analysis of a thorny issue, I cannot concur that Justice Kennedy's seemingly opaque 'significant nexus' test is a constitutional measure of federal regulatory jurisdiction..."
Access the complete opinion and
brief dissent (click
here). Access the WIMS-EcoBizPort Special Report on
Rapanos for links and extensive information (click
here).[*Water]
Report Looks At Supreme Court Rapanos Decision - Oct 25, 2006: According to a new study by the National Center for Policy Analysis (NCPA) -- Protecting Property Rights, Preserving Federalism and Saving Wetlands -- the U.S. Supreme Court missed a golden opportunity to give landowners, Federal regulators and the states clear guidance about which wetlands are under Federal control and what actions can be taken to protect and/or develop them. Instead, says NCPA, "...far from clearing the legal air, the highest court made the issue cloudier -- all to the detriment of the environment and the economy. The unsettled state of the law makes compliance next to impossible." NCPA indicates that The 1972 Clean Water Act expanded Federal authority over "navigable waterways" to prevent pollution. But with a vague definition of navigable waterways, the Clean Water Act was "vulnerable to wide interpretation and soon very little water was left outside the scope of the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps) regulation."
As a result,
they say, "the Corps and EPA have pursued civil and criminal
prosecutions for small, technical violations of the Act in order
to intimidate property owners and developers into
compliance. Some federal court decisions have limited the
federal government's powers over isolated wetlands, but their
rulings have been inconsistent." According to the study, the
Supreme Court could have made clear what did and did not
constitute a violation of the law, but instead chose to let
lower courts decide on a case-by-case basis. The
study also notes that for those wetlands over which the Federal
government has legitimate authority, evidence indicates that
states and private property owners are more than capable of
protecting them, and in many instances are better suited.
NCPA says that its large team of energy and environmental policy experts and scientists believe in sound science and that economic prosperity and protecting the environment can go hand and hand. "The Team seeks to correct misinformation and promote sensible solutions to energy and environment problems." Access a NCPA release (click here). Access the 25-page report (click here). [*Water]
PLF Petition To
Define “Waters Of The United States” - Sep 27: Pacific
Legal Foundation (PLF), who brought and argued the Rapanos
v. United States case before the U.S. Supreme Court last
term, announced that it has formally
petitioned the Federal government to change the regulatory
definition of “waters of the United States” to reflect
Congressional intent and the United States Supreme Court’s
interpretation in the recent Rapanos decision. PLF
said the petition is part of a major new Clean Water Act
litigation project known as “Beyond Rapanos: Charting a
Course to Liberty.”
According to the
rulemaking petition filed by PLF the immediate adoption of new
regulations, consistent with the intent of Congress as
interpreted by the Supreme Court in Rapanos, is vital to
the public interest. PLF argues that based on the Court’s
findings, the government’s current interpretation is
unreasonable and invalid. Principal Attorney Reed Hopper, who
argued Rapanos said, “For 30 years, the public has been subject
to uncertain and inconsistent jurisdictional standards that have
been the hallmark of Clean Water Act enforcement. It is time for
action and time for a change.
PLF indicated that their Beyond Rapanos project will be a major focus of the foundation’s efforts for several years to come and will center on defending victims of Clean Water Act enforcement actions throughout the country. Hopper said, “PLF is actively pursuing litigation all over the United States that will, once and for all, return common sense and the rule of law to enforcement of the Clean Water Act. At every turn, PLF will be working to effect change and rein in government’s unjustified power over property owners who are being victimized by unreasonable enforcement of the Act.” Last month, PLF announced the filing of its first “Beyond Rapanos” case – Fairbanks North Star Borough v. United States Army Corps of Engineers. According to PLF, this case is one of the first to test the Corps’ interpretation of the Clean Water Act following the Rapanos decision. In Fairbanks, PLF sued the Army Corps of Engineers over what they called arbitrary enforcement of the Clean Water Act on land that is frozen to a depth of 20 inches. In this case, PLF is representing an Alaskan Borough which they say is "simply attempting to build playgrounds and athletic fields on a two-acre parcel. The land has no hydrological connection to navigable waters of the United States yet the Army Corps of Engineers asserts that the land is suitable for regulation under the CWA because it includes areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions."
Aside from the PLF
efforts, two Circuits of the U.S. Court of Appeals have recently
provided interpretations of the confusing 4-4-1, U.S. Supreme
Court decision in Rapanos -- the Seventh Circuit,
USA v. Gerke Excavating, Inc. (September 22, 2006) [See
WIMS 9/25/06]; and the Ninth Circuit,
Northern California River Watch v. City of Healdsburg
(August 10, 2006) [See WIMS 8/11/06].
Access a release from PLF with links to the petition and related information including a list of Rapanos-related cases (click here). Access the WIMS-eNewsUSA Blog post on the Seventh Circuit, USA v. Gerke Excavating, Inc., September 22, 2006 decision of the Seventh Circuit with links to that opinion and additional information (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006,decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete June 16, 2006, Supreme Court Rapanos opinion and syllabus (click here). [*Water]
USA v. Gerke
Excavating, Inc. Interprets Rapanos Decision - Sep
22: In the U.S. Court of Appeals, Seventh Circuit (WI, IL,
IN), Case No. 04-3941. This is the second U.S. appeals court
case to interpret the U.S. Supreme Court
4-4-1 decision in Rapanos v.
United States, 126 S.Ct. 2208 (2006) [See links below].
In a brief, but important 5-page decision, the Appeals Court
reconsiders its previous decision in this case as a result of
the Rapanos decision.
This suit charges that the
defendant, Gerke Excavating, violated the Clean Water Act by
discharging pollutants into “navigable waters” from “point
sources” without having obtained the permit from the Corps of
Engineers that is required if the pollutant consists of dredge
or fill material. The district judge granted summary judgment
for the government and
imposed a civil penalty. The Seventh
Circuit Appeals Court affirmed that decision on June 21, 2005.
412 F.3d 804 (7th Cir.
2005).
Gerke filed a petition for certiorari with the Supreme Court and the High Court granted the petition, 126 S. Ct. 2964 (2006), and remanded the case to the Appeals Court for further consideration in light of its June 19, 2006, decision Rapanos v. United States, where the Court reversed two judgments by the Sixth Circuit upholding Federal authority over wetlands [See WIMS 6/19/06], as the Seventh Circuit had in the instant case. On it reconsideration the Seventh Circuit said, "There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over 'navigable waters' ... Justice Kennedy concurred in the judgment to reverse but not in the plurality opinion. The four dissenting Justices took a much broader view of federal authority; Justice Kennedy criticized them as well as criticizing the plurality. When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. Marks v. United States, 430 U.S. 188, 193 (1977). In Rapanos, that is Justice Kennedy’s ground...
"Thus,
any conclusion that Justice Kennedy reaches in favor of
federal authority over wetlands in a future case will command
the support of five Justices (himself plus the four
dissenters), and in most
cases in which he concludes
that there is no federal authority he will command five votes
(himself plus the four Justices in the
Rapanos
plurality), the exception being
a case in which he would vote against federal authority only
to be outvoted 8-to-1 (the four dissenting Justices plus the
members of the Rapanos
plurality) because there was a
slight surface hydrological connection. The plurality’s
insistence that the issue of federal authority be governed by
strict rules will on occasion align the Justices in the
plurality with the
Rapanos
dissenters when the balancing approach of Justice Kennedy
favors the landowner. But that will be a rare case, so as a
practical matter the Kennedy concurrence is the least common
denominator (always, when his view favors federal authority)."
In its final determination on the instant case, the Appeals Court concluded, "Justice Kennedy’s proposed standard, which we conclude must govern the further stages of this litigation, requires factfinding not yet undertaken by the district court. We therefore remand the case to that court for such further proceedings as may be necessary to apply the standard."
Access the complete opinion
(click
here). Access the previous, June 21, 2005, decision
of the Seventh Circuit in this case (click
here). Access the WIMS-eNewsUSA Blog post on the
Northern California River Watch v. City
of Healdsburg August 10, 2006,decision of the
Ninth Circuit with links to that opinion and additional
information (click
here). Access
the complete Supreme Court Rapanos opinion and syllabus (click
here).
[*Water]
Northern
California River Watch v. City of Healdsburg -
Aug 10: In the U.S. Court of Appeals, Ninth Circuit, Case
No. 04-15442. [Editor's Note: The
Ninth Circuit provides considerable discussion of its
interpretation of the Rapanos decision and, in particular,
the interpretation of Justice Kennedy's "controlling"
opinion. The discussion begins on page 9 of the opinion.]
The City of Healdsburg appeals the district court’s judgment in favor of Northern California River Watch, an environmental group, in this litigation under the Clean Water Act (CWA). Plaintiff alleges that Healdsburg, without first obtaining a National Pollutant Discharge Elimination System (NPDES) permit, violated the CWA by discharging sewage from its waste treatment plant into waters covered by the Act. Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River.
The issue is whether
Basalt Pond is subject to the CWA because the Pond contains
wetlands adjacent to a navigable river of the United States.
The district court held that discharges into the Pond are
discharges into the Russian River, a navigable water of the
United States protected by the CWA. The court followed the
United States Supreme Court decision
in United States v.
Riverside Bayview Homes, Inc., 474 U.S.
121 (1985).
The Ninth Circuit, in
what is believed to be the first Appeals Court interpretation
of the Supreme Court's Rapanos decision [See WIMS
8/2/06] said, "The Supreme Court, however, has now narrowed
the scope of
that decision. See Rapanos v. United States, 126 S.Ct.
2208
(2006). In a 4-4-1
decision, the controlling opinion is that of Justice Kennedy
who said that to qualify as a navigable water under the CWA
the body of water itself need not be continuously flowing, but
that there must be a “significant nexus” to a waterway that is
in fact navigable. Adjacency of wetlands
to navigable waters alone
is not sufficient. Id. at 2236-52. In light of
Rapanos, we conclude that Basalt Pond and its wetlands
possess such a “significant nexus” to waters that are
navigable in fact, because the Pond waters seep directly into
the navigable Russian River. We affirm the district court’s
holding that Basalt Pond is subject to the CWA. We also affirm
the district court’s ruling that neither the waste treatment
system nor the excavation operation exceptions in the Act
apply to Healdsburg’s discharges."
In it discussion
of the Supreme Court ruling in Rapanos, the Ninth Circuit
said, "In the last
term, however, the Supreme Court discussed the intersection
between Riverside Bayview Homes and SWANCC. United
States v. Rapanos, 126 S.Ct. 2208 (2006).
The Rapanos decision involved two
consolidated cases, United States v. Rapanos, 376 F.3d 629
(6th Cir. 2004) (Rapanos I) and Carabell v. U.S.
Army Corps of Engineers,
391 F.3d 704 (6th Cir. 2004)...
"In Rapanos, a
4-4-1 plurality opinion, the Supreme Court
addressed how the term 'navigable waters' should be construed
under the Act. The plurality, written by Justice Scalia for
four Justices, would have reversed on the grounds that only
those wetlands with a continuous surface connection to bodies
that are 'waters of the United States' are protected under the
CWA. Justice Stevens, writing the dissent for four Justices,
would have affirmed on the grounds that wetlands not directly
adjacent to navigable waters, but adjacent to tributaries of
navigable waters, are protected under the CWA. Justice Stevens
argued that Riverside Bayview Homes is still
the controlling precedent and does not
require a 'significant nexus' test.
"Justice
Kennedy, constituting the fifth vote for reversal, concurred
only in the judgment and, therefore, provides the
controlling rule of law. See Marks v.
United States, 430 U.S. 188, 193 (1977) (explaining that
'[w]hen 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 in the judgments
on the narrowest grounds')..."
Access the complete opinion (click here). [*Water]
Senate Hearing On
Supreme Court Rapanos/Carabell Decision - Aug 1: The
Senate Committee on Environment and Public Works, Subcommittee
on Fisheries, Wildlife, and Water, Chaired by Lincoln Chafee
(R-RI) held a hearing on interpreting the effect of the U.S.
Supreme Court's recent decision in the joint cases of
Rapanos v. United States and Carabell v. U.S. Army
Corps of Engineers [See WIMS 6/19-20/06] on "The Waters
of the United States". Subcommittee Members delivering opening
statements included: Senators James Inhofe (R-OK); Lisa
Murkowski ( R-AK); Hillary Clinton (D-NY); and James Jeffords
(I-VT).
Witnesses
testifying at the hearing included: Ben Grumbles, Assistant
Administrator, Office of Water U.S. EPA; John Paul Woodley,
Jr., Assistant Secretary for Civil Works, U.S. Department of
Army; Deputy Assistant Attorney General, Environment and
Natural Resources Division, U. S. Department of Justice; Dr.
Jonathan Adler, Associate Professor of Law, Case Western
Reserve University School of Law; Dr. William W. Buzbee,
Professor of Law,Director, Environmental and Natural Resources
Law Program
Emory Law School; Immediate Past President, Izaac Walton League of America; National Wheat Growers and National Cattlemen’s Beef Association.
EPA testified,
"The Agencies [Corps of Engineers & EPA] are working closely
with the U.S. Department of Justice to interpret the decision
and its impacts on the scope of "waters of the United States"
protected under the CWA. In particular, we are working on
joint EPA/Corps guidance clarifying CWA jurisdiction in light
of the Rapanos and Carabell decision. It is our
hope that the guidance moves us beyond disagreement over how
widely we assert jurisdiction, and toward an agreement on how
effective we are in protecting wetlands that provide
ecological and social benefits. The development of guidance
should not be about bigger or smaller jurisdiction but about
better results.
"In the meantime, our field staff continues to administer CWA programs. To ensure consistent interpretation of the scope of 'waters of the U.S.' in light of Rapanos and Carabell, EPA and the Corps issued immediate guidance to field staff shortly after the decision, indicating that: the field staff should continue to process permit authorizations; to the extent circumstances permit, the field staff should temporarily delay making jurisdictional calls beyond the limits of the traditional section 10 navigable waters; and where delays are not possible and permit actions require taking a position on CWA jurisdictional scope, such determinations should be deferred, where possible, until further guidance is provided by Headquarters of both agencies...
The agencies
remain fully committed to protecting all CWA jurisdictional
waters as was intended by Congress."
The obviously contentious issue is defining “the waters of the United States.” Many have recommended that Congressional clarification is necessary; however, there is extensive disagreement on what the definition should be.
Access a link to the
hearing website and links to all testimony and statements (click
here). Access a webcast of the hearing (click
here); Access
the complete Supreme Court opinion and syllabus (click
here). Access links to the latest media coverage (click
here). [*Water]
Senate Hearing On Supreme Court Rapanos/Carabell
Decision - Jul 31: The Senate Committee on
Environment and Public Works, Subcommittee on Fisheries,
Wildlife, and Water, Chaired by Lincoln Chafee (R-RI) will
conduct a hearing on interpreting the effect of the U.S.
Supreme Court's recent decision in the joint cases of
Rapanos v. United States and Carabell v. U.S. Army Corps of
Engineers [See WIMS 6/19-20/06] on "The Waters of the United
States". The hearing will be held August 1, at 2:30 PM in
SD-406.
Rapanos v. U.S. &
U.S. v Carabell Supreme Court Decision - Jun 19, 2006: In a
highly confusing decision where the main opinion could only
garner the votes of four Supreme Court Justices -- Justices Scalia, Thomas, Roberts, and Alito -- the High Court has
essentially limited Federal jurisdiction as it relates to
wetlands, but many critical issues remain undecided. Some are
calling the decision a 4-1-4 decision that has split the four
Justices (Scalia, Thomas, Roberts, and Alito) supporting a
more restrictive view of the extent of Federal Clean Water Act
jurisdiction v. four Justices (Stevens, Souter, Ginsberg, and
Breyer) who support the government's view of a more liberal
interpretation of the extent of CWA regulations on upstream
activities and wetlands; and with Justice Anthony Kennedy
taking a "centrist opinion" but,
providing a fifth vote which will refer the cases back to the
lower courts for further proceedings with "different tests to
be applied" in their proceedings. At the crux is what
constitutes "waters of the United States" and
“navigable waters” within the meaning of CWA.
The conclusion of the
main opinion, written by Justice Scalia says, "Because
the Sixth Circuit applied the wrong standard to determine if
these wetlands are covered “waters of the United States,” and
because of the paucity of the record in both of these cases,
the lower courts should determine, in the first instance,
whether the ditches or drains near each wetland 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 that creates the
boundary-drawing problem we addressed in Riverside
Bayview. We vacate
the judgments of the Sixth Circuit in both No. 04–1034 and No.
04–1384, and remand both cases for further proceedings." There
is also a concurring opinion by Justice Roberts.
In a separate "concurring in the judgment" opinion by Justice Kennedy he says, "In these consolidated cases I would vacate the judgments of the Court of Appeals and remand for consideration whether the specific wetlands at issue possess a significant nexus with navigable waters." As explained in Justice Stevens' dissent the difficulty arises in the fact that "the plurality and Justice Kennedy agree that there must be a remand for further proceedings, [however;] their respective opinions define different tests to be applied on remand." Justice Kennedy indicates, "In the instant cases neither the plurality opinion nor the dissent by Justice Stevens chooses to apply this test [i.e. the 'significant nexus' test of Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC)]; and though the Court of Appeals recognized the test’s applicability, it did not consider all the factors necessary to determine whether the lands in question had, or did not have, the requisite nexus. In my view the cases ought to be remanded to the Court of Appeals for proper consideration of the nexus requirement." In the dissenting opinion, written by Justice Stevens, and joined by Souter, Ginsberg, and Breyer; he writes, "I would affirm the judgments in both cases, and respect-fully dissent from the decision of five Members of this Court to vacate and remand. I close, however, by noting an unusual feature of the Court’s judgments in these cases. It has been our practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate. That prior practice has, on occasion, made it necessary for Justices to join a judgment that did not conform to their own views. In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction in both of these cases -- and in all other cases in which either the plurality’s or Justice Kennedy's test is satisfied -- on remand each of the judgments should be reinstated if either of those tests is met.
Access the
complete opinion and syllabus (click
here). Access links to the latest media coverage (click
here). Access the Rapanos/Carabell oral
argument transcript (click
here). Access briefs in the case on the Supreme Court
website (click
here). Access the Supreme Court docket for the case
listing the extensive list of "Friend of the Court" parties in
the proceeding (click
here). Access all briefs in the case posted on the
Endangered Species & Wetlands Report website (click
here). [*Water, *MIWater]
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