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Political Scene

Where the Water Ends and the Wetland Begins
Linda Rowan

The Supreme Court is wading into some contentious cases regarding shared natural resources. Recently, a fractured decision on a Clean Water Act case has left the nation wondering where the water ends and the wetland begins. The lack of a decisive outcome will ensure more litigation in the lower courts over interpretations of the Clean Water Act, one of the most effective environmental laws ever enacted.

The Clean Water Act provides the basic structure for regulating water quality by requiring the federal government “to restore and maintain the chemical, physical and biological integrity” of U.S. waters. The act sets water quality standards, develops strategies for nonpoint source pollutants, and includes federal and state partnerships to deal with wastewater plant construction. The law also makes it unlawful for any person to discharge any pollutant into “navigable waters” without a permit.

In the two cases considered jointly before the Supreme Court — Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers — the question at hand was the extent to which the government could regulate the development of wetlands near or adjacent to non-navigable tributaries that flow into navigable waters. The key issue before the court was the statutory definitions of “navigable waters” and “adjacent.”

In 1972, Congress broadened the definition of navigable waters to “waters of the United States” that include non-navigable waters, such as wetlands, that could be point sources of pollutants into traditionally navigable waters. The Army Corps of Engineers (Corps) continued to apply the law only to traditionally navigable waters until a court order in 1975 forced the agency to use the broader intent of Congress. That same year, the Corps created new regulations that affected many landowners because about 70 percent of wetlands in the lower 48 states are on private lands.

Subsequently, the Supreme Court has considered the regulation of wetlands under the Clean Water Act. A 1985 Supreme Court ruling upheld the government’s authority to regulate wetlands adjacent to navigable waters. Afterward, the Corps clarified its regulations to include migratory bird paths, ephemeral streams, and drains and ditches. This led to a 2001 case in which the court concluded that the government could not regulate isolated wetlands connected to navigable waters solely based on migratory bird paths because the wetlands lacked a “significant nexus” to navigable waters — leaving some ambiguity in the government’s interpretation of the act.

In the first case of the 2006 ruling, Michigan state inspectors told developer John Rapanos that his properties contained wetlands regulated by the Clean Water Act. The wetlands are connected by ditches or human-made drains to creeks or rivers that flow into navigable waters. Rapanos hired a consultant, Frederick Glenn Goff, a plant ecologist, who concurred with the state inspectors. Still, Rapanos filled in several wetlands, and ignored multiple cease and desist orders. Rapanos was convicted of criminal and civil charges for his actions.

In the second case, also in Michigan, developer June Carabell wanted to build a condominium on 19 acres of land after filling in about 15 acres of forested wetlands. The Corps denied the permit because the wetlands are adjacent to a tributary that flows into Lake St. Clair. Carabell sued, arguing that a human-made berm separates the wetlands from the tributary and thus that no hydrologic connection exists that would be covered by the Clean Water Act.

The Supreme Court reached a 5 to 4 ruling to vacate the decisions and remand the cases back to the lower courts to reconsider. Justice Antonin Scalia wrote an opinion, joined by three of the majority-ruling justices, that ordered the lower courts to determine whether ditches and drains are waters in the “ordinary sense of containing a relatively permanent flow” and if the wetlands are “adjacent” in the sense of “possessing a continuous surface connection.” These definitions, gleaned from a 1954 edition of a dictionary, significantly narrow the jurisdiction of the act, are not consistent with congressional intent and are not compatible with natural systems, where water flow can be variable and where hydrologic and ecologic connections abound on the surface and in the subsurface.

Scalia’s opinion concluded that scientific criteria were too broad and that the most common usage of “river” was intended by the term “waters of the United States.” He and the three majority-ruling justices who joined on his opinion were particularly concerned that the Corps was over-reaching in its rulings and that every molecule of water would need to be regulated.

Justice Kennedy, who agreed with the majority opinion that the cases should be reconsidered by the lower courts, disagreed with almost every other aspect of Scalia’s opinion. He wrote a separate opinion that is likely to be the interpretation used by the lower courts to reconsider these two cases. Kennedy noted that rivers can be dry for long periods of time and rejected the notion of a river having relatively permanent flow.

Kennedy, along with the four dissenting justices, accepted the Corps’ criteria for including wetlands within the Clean Water Act. The criteria states that wetlands adjacent to waters help maintain water quality by providing habitat for wildlife, keeping excessive sediment and pollutants out of adjacent waters, and reducing downstream flooding by absorbing water in periods of high water flow — thus providing both a physical and ecological connection. Kennedy, however, differed with all of the justices on how to interpret “adjacent,” and requested that the lower courts consider whether there is a “significant nexus” between the wetlands and the navigable waters in both cases.

The two very different standards for determining regulated wetlands in the divided concurring opinions and the fact that five of nine justices accepted the Corps’ scientific criteria of a wetland leaves the lower courts with uncertainty about how to reconsider these cases. Somehow they will have to determine what a “significant nexus” between a wetland and navigable water means on a case-by-case basis.

In the meantime, the Corps will be revising their wetland regulations again, while Congress is considering two bills that would define navigable waters differently. Concern about how these definitions of natural systems will affect the environment does not stop with the Clean Water Act because other laws, such as the Oil Pollution Act of 1990, also use the same definition of waters and would be affected by any changes.

Concern about defining scientific concepts in jurisprudence also does not stop with clean water. The Supreme Court has decided to hear a case on the Clean Air Act, which will consider whether carbon dioxide is a pollutant, and this case is likely to be even more contentious. To avoid putting scientific or policy matters into the hands of the courts, Congress must more clearly define laws based on scientific understanding, and federal agencies must better articulate their regulations and scientific definitions, based on the input of all stakeholders, including the scientists.


Rowan is director of the American Geological Institute’s Government Affairs Program. E-mail: rowan@agiweb.org.

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