Davis Graham & Stubbs LLP attorneys at law 1550 Seventeenth Street, Suite 500, Denver, CO 80202 Tel:...

Davis Graham & Stubbs LLP

attorneys at law

1550 Seventeenth Street, Suite 500, Denver, CO 80202 Tel: 303.892.9400

www.dgslaw.com

Wetlands and Rapanos – An Evolving, Ephemeral Concept

IMA – North AmericaIndustrial Minerals Technology Workshop, March

5-7, 2007

Robert W. Lawrence, Esq.(303) 892-7409

[email protected]


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The issue

• Long-standing dispute on scope of Clean Water Act (“CWA”) § 404 jurisdiction – Section 404(a) of CWA authorizes Corps (or

a state with an approved program) to issue a permit “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.”

• Query: How broad is the jurisdictional reach of “navigable waters” – Congress defined term ambiguously in CWA

as “waters of the United States”


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In the beginning . . .

• U.S. v. Riverside Bayview, 474 U.S. 121 (1985)– Issue: whether wetland adjacent to a

navigable water is within the scope of CWA Section 404 jurisdiction

– Unanimous opinion: Justice Byron White found jurisdiction on basis of adjacency to navigable water • not because of hydrological connection • Court emphasized role of wetlands in the overall

ecology and ecosystem • upheld Corps’ interpretation of waters of the

United States to “include wetlands that ‘actually abutted on’ traditional navigable waters”


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The migration of birds

• Solid Waste Agency of Northern Cook County v. U.S. Army Corp. of Engineers (“SWANCC”) (2001) – Supreme Court struck down “migratory bird

rule” which extended Corps’ jurisdiction to intrastate waters which are or could be used as habitat by migratory birds.

– Court found no Congressional intent to extend CWA jurisdiction to such isolated, intrastate ponds

– Majority identifies “significant nexus” test - whether there is a significant nexus between water body at issue and interstate navigable water


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Scrambling in the aftermath of SWANCC

• EPA/Corps quickly issue legal memo– SWANCC applies narrowly; focuses on

isolated, non-navigable intrastate waters

– But EPA/Corps never issued a final post-SWANCC rule

• Many lower courts followed majority “significant nexus” test

• Nearly 20 appellate circuit court decisions post -SWANCC


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Finally, Rapanos

• June19, 2006 – U.S. Supreme Court Issues Consolidated Cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers (“Rapanos”)– Purports to define scope of Corps

jurisdiction over wetlands under CWA § 404 – But doesn’t resolve conclusively many

questions of CWA § 404 jurisdiction found at industrial minerals sites, especially sites in western U.S.


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Jurisdictional Waters Are Still Muddy

• Why? Because of how Supreme Court decided Rapanos– Justice Scalia’s 4 Justice “plurality” opinion– Justice Kennedy’s solo concurrence– Justice Steven’s 4 Justice dissent– Five Justices agreed to vacate and remand

the cases• But, a majority could not agree on the proper

approach for determining jurisdiction over wetlands/tributaries under CWA


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What is the effect of a “plurality” opinion?

• Lower courts commonly do not view plurality opinions as creating binding precedent

• Chief Justice Roberts’ view:– “It is unfortunate that no opinion commands

a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”


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Does a plurality opinion decide anything?

• 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 in the judgments on the narrowest grounds. See Marks v. U.S. (1977) – But in Rapanos, the Scalia plurality and

Kennedy concurrence agreed upon the result – and that’s about it!


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Rapanos – just the facts

• Mr. Rapanos filled in 54 acres of wetlands at three different sites without a permit– Nearest body of navigable water was 11-20

miles away– Wetlands hydrologically connected by drains

or surface water connections to navigable waters, but did not directly abut navigable waters

– Corps had informed Rapanos that wetlands were waters of the U.S. subject to jurisdiction. Rapanos proceeded regardless. U.S. initiated enforcement action against him for violating CWA § 404.


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Carabell facts

• Carabell sought a permit from the Corps to fill in forested wetlands and construct over 100 condos

• A man-made ditch was located along one side of the wetland, separated from the wetland by a four-foot-wide manmade berm– Berm itself was largely impermeable and blocked drainage

from the wetland, but may have infrequently overflowed • Corps determined that Carabell’s property provided

water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in a downstream drain, a creek, and ultimately

Lake St. Clair, located a mile away


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Lower Court Decisions in Rapanos

• In both Rapanos and Carabell, the district court found that federal CWA jurisdiction existed over the respective wetlands

• On appeal, the Sixth Circuit Court of Appeals affirmed, ruling against the property owners and in favor of the Corps. Rapanos and the Carabells petitioned the Supreme Court to accept their cases, and the Supreme Court did so.


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What happened in the Supreme Court?

• Justice Scalia obtained the votes of Chief Justice John Roberts, Jr., Justice Clarence Thomas and Justice Samuel Alito for

“plurality”, but not a “majority” • Under plurality opinion, the Corps’ CWA

jurisdiction is substantially reduced:– Ephemeral waters, dry washes, etc., are not

jurisdictional waters– Relatively permanent, standing or flowing bodies of

water would fall within the scope of jurisdictional waters under the CWA

– Wetlands must have a continuous surface connection to bodies that are “waters of the United States” in their own right


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Kennedy concurrence retains significant nexus test

• The Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense

• Significant nexus between a wetland and a navigable water must be evaluated based upon the CWA’s objectives of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters


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Kennedy concurrence (cont.)

• In the Carabell case, Justice Kennedy said Corps improperly based jurisdiction solely on fact that wetland was adjacent to ditch opposite berm on property’s edge.

• Under either Scalia or Kennedy approach, “mere adjacency” to a tributary is not enough to establish jurisdiction. Kennedy would require “a more significant inquiry, based on

the significant nexus standard”


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When Does Jurisdiction Exist? (Plurality)

• “Waters of the United States” are “only relatively permanent, standing or flowing bodies of water forming geographic features that are described in ordinary parlance as

streams, oceans, rivers and lakes” – Terms suggest continuously present, fixed bodies of

water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows

– Continuous flow of water in a permanent channel generally is required for jurisdiction; none of these terms encompasses transitory puddles or ephemeral flows of water


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When does CWA jurisdiction not exist? (Plurality)

• “Waters of the U.S.” does not include ephemeral streams, wet meadows, storm culverts, sheet flows during storm events, drain tiles and drainage ditches or dry desert arroyos– does not include channels through which water flows

intermittently or ephemerally, or channels that periodically provide drainage for rainfall

• Note: by requiring waters to be relatively permanent, Court was not necessarily excluding streams, rivers or lakes that might dry up in extraordinary circumstances such as drought or seasonal rivers from jurisdiction. “Common sense and common usage distinguish between a wash and a seasonal river.” Scalia Opinion, footnote 5.


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Plurality’s treatment of wetlands

• Only wetlands with a continuous surface connection to water that is a water of the United States, so that there is no clear demarcation between such water and the wetlands, are “adjacent to” waters of the United States

and thus subject to CWA jurisdiction – Wetlands with intermittent, physically remote hydrologic

connection to “waters of the United States” lack necessary connection to jurisdictional waters

– Under plurality opinion: 1) the adjacent channel must contain a relatively permanent body of water connected to traditional interstate navigable water; and (2) wetland must have a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins


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When does CWA jurisdiction exist? (Kennedy concurrence) • Must be a significant nexus between the

wetlands in question and navigable waters in the traditional sense – nexus exists if wetlands, either alone or in

combination with similarly situated lands in region, significantly affect chemical, physical, and biological integrity of other ‘navigable’ waters

• Disagreed with plurality views that Corps and EPA have jurisdiction only over relatively permanent, standing or flowing bodies of water, and not over intermittent or ephemeral streams

• Disagreed with plurality that wetlands are jurisdictional only if they bear a continuous surface-water connection to water bodies that are waters of the United States in their own right


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Limitations on CWA jurisdiction (Kennedy

concurrence)• Allowing jurisdiction over wetlands whenever a

wetlands lies along a ditch or a drain, however remote and insubstantial, that eventually may flow into a navigable water, goes too far– The word navigable must be given some effect– If wetland’s impact on water quality is speculative or

insubstantial, they would not be jurisdictional – Corps standard for jurisdiction over tributaries – that it

feeds into a navigable water or tributary thereof and possesses an ordinary high watermark – is too wide open

– Mere hydrologic connection not enough in most cases – connection may be too insubstantial to establish nexus with navigable waters


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U.S. v. Chevron Pipeline (N.D. Tex.)(June 2006)

• Intermittent Stream– Dry, except in significant rainfall

events• Followed prior 5th Circuit precedent and

Scalia test• But court noted that government failed

to satisfy Kennedy test as well


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U.S. v. Evans (M.D. Fla.)(Aug. 2006)

• Discharge of sewage into creek that constituted headwaters of tributary of navigable river

• CWA jurisdiction can be found if either the Scalia or Kennedy tests are satisfied

• Court found CWA jurisdiction under Scalia test


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Northern California River Watch v. City of Healdsburg

(9th Cir.) (Aug. ’06)• 58 acre water-filled quarry pit separated

from navigable river by levee• CWA jurisdiction found under Kennedy

test– “Mere adjacency” not sufficient for

jurisdiction, but• Significant physical nexus (water seeping into

river; river overtops levee in flood)• Biological nexus (wildlife)• Chemical nexus (increased chloride levels in river)


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U.S. v. Gerke Excavating, Inc.

(7th Cir.)(Sept. ‘06)• Kennedy test adopted• Case remanded for further fact

finding


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U.S. v. Johnson (1st Cir.)(Oct. ’06)

• CWA jurisdiction can be found if either the Scalia or Kennedy tests are satisfied

• Case remanded for further fact finding


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U.S. v. Kincaid Trust (E.D. Mich.)(Nov. ’06)

• Acknowledges both Scalia and Kennedy tests

• Beach grading in wetland area violated CWA


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Sierra Club v. USACE (M.D. Fla.)(Nov. ’06)

• Development of wetlands• References both Scalia and

Kennedy tests• Cites Johnson and Gerke


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Envt’l Protection Info. Center v. Pacific Lumber Co. (N.D.

Cal.)(Jan. ’07)• Streams impacted by sediment from

logging• Kennedy test followed per N. Cal. River

Watch• Hydrologic connection established; but

no evidence that streams “significantly affect the chemical, physical, and biological integrity of other covered waters”

• Therefore, not navigable waters under Rapanos


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Simsbury-Avon Preservation Society v. Metacon Gun Club

(D.Conn.)(1/07) • Lead from shooting range located in

wetland• CWA jurisdiction can be found if either

the Scalia or Kennedy tests are satisfied• No surface water connection – failed

Scalia test• Analytical testing revealed only

“potential exposure” to elevated lead levels; thus effects on water quality are speculative or insubstantial – fails Kennedy test


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National Ass'n of Home Builders v. U.S. Army Corps of Engineers, D.D.C.

(1/30/07)

• “Tulloch II” rule violates CWA• EPA may not enforce the Tulloch II rule. The rule

governs when "mechanized earth-moving equipment" results in discharge of dredged/fill material subject to permitting under the CWA– The rule aims at clarifying when excavation activities near

lakes and rivers result in "incidental fallback" of dredged material that is deposited in the water, which would not require a permit, and when the dredged material constitutes a discharge subject to a permit.

– Rule defines incidental fallback as "the redeposit of small volumes of dredged material that is incidental to excavation activity ... when such material falls back to substantially the same place as the initial removal."


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Tulloch II Rule Invalidated (Cont.

• The National Association of Home Builders (lead plaintiff in lawsuit) says decision means that homebuilders and developers "do not need a federal Clean Water Act permit to operate construction equipment in wetlands unless they are actually dredging or filling them in"


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Baccarat Fremont Developers LLC v. U.S. Army Corps of Engineers

(Cert. Denied. U.S. S.Ct. 2/20/07)

• Court declined to decide whether Corps is authorized to restrict development on wetlands separated from adjoining streams and lakes by man-made ditches – let stand Ninth Circuit decision that Corps

need not show "significant hydrological and ecological connection" between wetlands and adjoining streams in order to exert authority over the wetlands (Baccarat Fremont Developers LLC v. U.S. Army Corps of Engineers, 425 F.3d 1150 (9th Cir. 2005)

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