Navigating the Waters of the United States: Post-Rapanos Review of Federal Clean Water Act Jurisdiction
October 04, 2006
The Ninth Circuit recently issued its first post-Rapanos decision, Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006)("River Watch"), concerning criteria required to establish Clean Water Act jurisdiction.
Last June, the United States Supreme Court issued a highly anticipated ruling on the scope of "waters of the United States" subject to regulation under the federal Clean Water Act. Rapanos v. United States, 126 S.Ct. 2208 (2006) ("Rapanos"). In a fragmented 4-4-1 decision that included a plurality written by Justice Scalia and a separate concurrence by Justice Kennedy, Rapanos limited the types of waters and wetlands that qualify as "waters of the United States."
The Ninth Circuit's historically broad construction of Clean Water Act jurisdiction is likely to be more circumscribed following Rapanos. In River Watch, however, the court concluded that the record supported Clean Water Act jurisdiction even under the narrow standards adopted in Rapanos.
"Waters of the United States"
The Clean Water Act prohibits the discharge of "pollutants," or the placement of "fill," into "waters of the United States" without an appropriate permit. 33 U.S.C. §§ 1311(a); 1342; 1344. The United States Army Corps of Engineers' current regulations interpret the phrase "waters of the United States" to include "adjacent wetlands." 33 C.F.R. § 328.3(a)(7).
The scope and definition of "waters of the United States" has been a controversial and frequently litigated topic. Before Rapanos, the Ninth Circuit interpreted "waters of the United States" quite expansively, consistently holding that virtually any wetland, waterbody, ditch or other conveyance hydrologically connected to a navigable water constitutes a "water of the United States," no matter how tenuous or sporadic the connection may be. The Supreme Court had previously held that the term does not extend to isolated waters that have no connection to navigable waterways. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675 (2001).
Rapanos v. United States
In Rapanos, the Supreme Court evaluated the United States Army Corps of Engineers' determination that four Michigan wetlands located near ditches or man-made drains that eventually empty into traditional navigable waters constituted "waters of the United States" within the meaning of the Act. A majority of the Court, consisting of the four-Justice plurality opinion and Justice Kennedy's concurrence, overturned the Sixth Circuit's holding that the wetlands were "waters of the United States."
Justice Scalia's plurality opinion held that the phrase "waters of the United States" unambiguously excludes ephemeral channels and drainages, even if they maintain a hydrologic connection to traditional navigable waters. Rather, "waters of the United States" are limited to "relatively permanent, standing or continuously flowing bodies of water," and adjacent wetlands must maintain a "continuous surface connection" to such bodies to qualify as "waters of the United States."
Justice Kennedy filed a separate concurrence in which he too rejected the notion that the mere presence of a hydrologic connection to downstream navigable waters is sufficient to qualify a wetland as a "water of the United States." However, Justice Kennedy advocated a case-by-case analysis of whether there exists a "significant nexus" such that the drainage or wetland is likely to "significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable."
Northern California River Watch v. Healdsburg
The Rapanos decision called into question many of the broad interpretations of "waters of the United States" previously adopted by the Ninth Circuit. However, the Ninth Circuit's first post-Rapanos decision, Northern California River Watch v. City of Healdsburg, upheld the district court's determination that the City of Healdsburg's sewage discharges to a water-filled rock quarry pit ("Basalt Pond") immediately adjacent to the Russian River constituted discharges to "waters of the United States." In reaching this result, the court stated that it was applying Justice Kennedy's "significant nexus" and "significant impact" test. However, the court also invoked criteria from the Rapanos plurality opinion related to continuous hydrologic connections.
The court concluded that the Basalt Pond qualified as a "water of the United States" because it was hydrologically connected to the Russian River via several pathways, including a continuous surface and subsurface exchange of water. In addition, the court found that discharges of sewage and chlorine from the Basalt Pond significantly affected water quality in the Russian River, a water understood as "navigable in the traditional sense."
The full impact of Rapanos' limitations on the Ninth Circuit's interpretation of Clean Water Act jurisdiction will need to await factual settings where the "nexus" or hydrologic connection is intermittent, ephemeral, or otherwise less significant, or where there is no showing of significant impact on the quality of jurisdictional waters. However, the River Watch court's consideration of Justice Kennedy's concurrence combined with criteria from the plurality opinion provides an approach consistent with case law governing interpretation of fragmented Supreme Court opinions. See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1140 (9th Cir. 2005).
In the meantime, the Army Corps of Engineers is also determining its response to Rapanos. The Corps may issue guidance documents to assist the regulated community's understanding of the Corps' interpretation of "waters of the United States" following Rapanos, or may initiate the formal rulemaking process necessary to promulgate revised regulations.