Parsing of the Waters

The U.S. Army Corps of engineers may have exceeded its authority to regulate wetlands adjacent to tributaries of traditionally navigable waters, according to a ruling by the U.S. Supreme Court. The decision reveals deeply rooted conflicts among the justices on how to define the waters protected by the federal Clean Water Act.

The decision will influence expected federal rulemaking initiatives affecting all development, including landfills and other waste facilities, near bodies of water.

In 1994, John Rapanos, a Michigan real estate developer, began a decade-long clash with state and federal regulatory officials over his refusal to apply for a permit before clearing and filling land lying near ditches or man-made drains that eventually empty into “navigable waters.” In 2004, the Supreme Court declined to review his criminal conviction on related charges.

Federal prosecutors later brought civil enforcement proceedings against him and won a judgment for millions of dollars in fines. That judgment was upheld by the U.S. Court of Appeals for the Sixth Circuit, but this time Rapanos was successful in convincing the Supreme Court to accept his appeal.

Writing for four conservative justices, Justice Antonin Scalia referred to federal regulators as “enlightened despots” who had stretched their authority “beyond parody” by regulating land that contained nothing but storm drains, roadside ditches and other waterways far from interstate channels. As the Scalia plurality saw it, the government can regulate land that is contiguous to a “relatively permanent body of water” and has a “continuous surface connection” to these waters “so that there is no clear demarcation between ‘waters’ and wetlands.”

Justice Anthony Kennedy cast the key fifth vote ordering a lower court to reconsider the case. He agreed with the Scalia plurality that the lower courts had used the wrong standard by deferring to the Corps of Engineers' authority over wetlands, but rejected the definition of “waters” proposed by Justice Scalia. More than “permanent bodies of water” are subject to regulation, he said. The test is whether the water or wetland has a “significant nexus to waters that are or were navigable in fact or that reasonably could be so made.”

Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, issued a dissenting opinion that essentially accused the Scalia foursome of judicial activism by disregarding the “deference it owes to the executive” as well as “its own obligation to interpret the laws rather than to make them.”

The case now goes back to the Sixth Circuit, which must figure out what the high court ruling requires. What's significant is that the opinion does not provide five votes for the standard that lower courts should apply. Chances are, the appeals court will use the Kennedy formula in deciding whether to reinstate the civil judgment against Rapanos.

“Everyone will be looking at this case … for all future environmental litigation, especially where there is some states' rights wrinkle, which may possibly complicate the picture,” Emory University Law School professor William Buzbee told The National Law Journal. He filed an amicus brief in the case on behalf of a group of former U.S. EPA administrators.

[Rapanos v. United States, No. 04-1034, June 19, 2006.]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.