Alert: Supreme Court to Address the Scope of
Clean Water Act Jurisdiction Over “Adjacent” Wetlands
November 01, 2005
The United States Supreme Court granted certiorari last month in two Clean Water Act (“CWA”) cases that could significantly affect the extent of federal jurisdiction over wetlands and other non-navigable waters. Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004); Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004).
In Rapanos and Carabell, the Sixth Circuit Court of Appeals upheld the U.S. Army Corps of Engineers’ (“Corps”) assertion of regulatory authority over wetlands that the landowners contended were isolated from waters of the United States and, therefore, outside the scope of CWA jurisdiction. The Supreme Court’s decision to review these cases may signal its intention to clarify limits on CWA jurisdiction in these circumstances.
This action represents the Court’s first foray into wetlands jurisdiction since its 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”). In SWANCC, the Court held that the Corps lacked CWA authority to regulate isolated wetlands where the Corps predicated its jurisdiction solely on the presence of migratory birds. Since the SWANCC decision, federal courts have struggled to delineate the extent of the Corps authority to regulate wetlands and other non-navigable waters which are removed from, yet potentially hydrologically connected to, traditionally navigable waters.
The Corps’ authority to regulate wetlands arises from Section 404 of the CWA, which requires that persons obtain a permit from the Corps prior to discharging dredged or fill material into jurisdictional “waters of the United States.” 33 U.S.C. §§ 1344, 1362(7). The Corps’ regulations implementing the CWA define “waters of the United States” to include traditionally navigable waters as well as tributaries to navigable waters and wetlands adjacent to such waters. 33 C.F.R. § 328.3(a). Although the Supreme Court in SWANCC restricted the Corps’ authority to regulate truly isolated, non-navigable wetlands where the only jurisdictional nexus is migratory birds, it left open the larger question of what degree of hydrologic connection there must be between a wetland and navigable waterbody to trigger CWA jurisdiction.
The Sixth Circuit’s decisions in Rapanos and Carabell adopted an expansive approach to wetlands jurisdiction. In Rapanos, the Sixth Circuit held that CWA jurisdiction extends to wetlands as “adjacent waters” so long as there is a hydrological connection or “significant nexus” between the wetlands and a navigable water. The Sixth Circuit found such a nexus to exist where the wetlands were hydrologically connected via a series of drains or other non-navigable waters to a navigable waterbody – even though that waterbody was, in one instance, over 20 miles away. In Carabell, the Sixth Circuit went further still, holding that the Corps could regulate wetlands even in the absence of an established hydrological connection where the relevant wetlands were “adjacent” to a man-made ditch which connected to a drain leading to a navigable waterbody.
The expansive approach taken by the Sixth Circuit has been echoed by the Ninth Circuit, which encompasses California. In fact, shortly after the Supreme Court’s grant of certiorari in these cases, the Ninth Circuit upheld the Corps’ assertion of “adjacent wetlands” jurisdiction over a portion of a commercial development site. Baccarat Fremont Developers v. U.S. Army Corps of Engineers, 2005 DJDAR 12321 (9th Cir., Oct. 14, 2005). The Court relied on Carabell in distinguishing SWANCC and noted that the Carabell facts “are remarkable similar to the facts here.”
The Supreme Court’s review of Rapanos and Carabell should provide clarification regarding the extent of CWA jurisdiction over wetlands and other non-navigable waters. This, in turn, will provide guidance to landowners, developers and public agencies attempting to navigate the confusing array of statutory, regulatory and case law governing this area.
Nonetheless, while the issue of federal jurisdiction over wetlands may be clarified by the Supreme Court’s decisions in these cases, further questions may arise regarding state and local jurisdiction over these same waters. In California, for instance, the State Water Resources Control Board may assert jurisdiction over isolated wetlands as “waters of the State” through its General Waste Discharge Requirements issued pursuant to the California Water Code. As a result, landowners and developer must remain vigilant in delineating potential wetland areas before proceeding with activities that could cause impacts -- the absence of Corps jurisdiction may not mean the absence of other required permitting and regulatory control.
The Environmental Law Department of Farella Braun + Martel LLP is among the largest and most experienced in the nation, with attorneys specializing in all areas of environmental compliance counseling, regulatory representation and litigation. We represent large and small businesses, municipalities, industrial facilities and refiners, agricultural interests and other private and public-entity clients concerning CWA issues and proceedings. Please contact any of our environmental attorneys, for more information.