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June 29, 2006Client Alert

Wetlands and Water Bodies Must Have "Significant Nexus" with a Navigable Water to Fall Under the Jurisdiction of the Clean Water Act

On Monday, June 19, 2006, the United States Supreme Court announced its decision in the consolidated cases of Rapanos et ux., et al. v. United States and Carabell et al. v. United States Army Corps of Engineers et al.

The primary issue in this case was whether the Clean Water Act applies to wetlands that are themselves not navigable and are not immediately next to any body of water that is navigable. The Clean Water Act authorizes the U.S. Army Corps of Engineers to regulate all "waters of the United States," so the court had to determine if these wetlands qualify under that category.

The result of the decision for most of the country is that the U.S. Army Corps of Engineers will have jurisdiction over wetlands only if the wetlands satisfy either of two tests put forth by members of the court: 1) The wetlands must be immediately adjacent to a navigable body of water that has a relatively permanent flow; or 2) There is a significant nexus between the wetland and a waterway that was, is, or could be made navigable. However, the decision will probably have little practical effect in Wisconsin because wetlands not under the jurisdiction of U.S. Army Corps of Engineers are under the jurisdiction of the DNR.

Effect in Wisconsin

In Wisconsin, the import of this case is not as great as it may be in other areas of the country. Following the decision previously handed down by the Supreme Court in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC"), the Wisconsin Legislature authorized state regulation of "nonfederal wetlands" (See Wis. Stat. § 281.36 (1m)). Nonfederal wetlands include all wetlands that are removed from federal jurisdiction because of the Supreme Court's decision in SWANCC or any subsequent interpretation of that decision. So, even if the Supreme Court ruling in Rapanos v. U.S. means that some Wisconsin wetlands are not subject to the jurisdiction of the Clean Water Act and the requirement to obtain a Corps permit, these wetlands are still subject to the water quality standards and permit requirements imposed by the state under the direction of the DNR, pursuant to Wis. Stat. § 281.36 et al.

Facts

Mr. Rapanos is a Michigan land developer who was assessed significant fines because he filled in an area that had been deemed a wetland without obtaining a proper permit. The wetland was adjacent to a tributary that led to a navigable waterway.

Keith and June Carabell applied for permits to fill in wetlands on land they owned as a precursor to the construction of several condominiums. A manmade berm separates the wetlands from a ditch that carries water to a navigable body of water.

None of the wetlands in question were navigable in fact. Additionally, none of the wetlands abutted any body of water that was navigable. Each wetland was adjacent to a tributary to a navigable water body. The Michigan Department of Environmental Quality (MDEQ), under authority delegated to it by Army Corps of Engineers, interpreted all of the wetlands in question to be within the "waters of the United States."

The Court Split Three Ways on the Decision

Four justices agreed with the opinion of the court written by Justice Scalia. Justice Scalia's opinion advocates the establishment of a two part test that the U.S. Army Corps of Engineers must use to determine whether wetlands are "waters of the United States." The first part of the test is determining whether the water body or wetlands are "waters" in the sense that they contain a relatively permanent flow. If that condition is satisfied, the U.S. Army Corps of Engineers would then determine whether the water body or wetland in question is "adjacent" to actual navigable waters. To be "adjacent" under this test, the water body or wetland must possess a continuous surface connection such that it is difficult to determine where the water ends and the land begins. If both of these conditions are satisfied, according to the terms of the test written by Justice Scalia and agreed to by three other Justices, the body of water or wetland may be included in the "waters of the United States" and subject to the jurisdiction of the U.S. Army Corps of Engineers pursuant to the terms of the Clean Water Act (“CWA”).

Four Justices agreed to a dissent, written by Justice Stevens. Justice Stevens' opinion acknowledges that the phrase "waters of the United States" is somewhat ambiguous. It also admits that the U.S. Army Corps of Engineers has interpreted this phrase rather broadly. But since the U.S. Army Corps of Engineers' interpretation advances the purpose of the CWA, Justice Stevens argues that the courts should defer to it. Justice Stevens would defer to the Corps of Engineers' determination of the limits of the "waters of the United States" in this case. That determination includes the wetlands at issue in these consolidated cases.

The ninth member of the Court, Justice Kennedy, rather than clearly breaking the tie, took a position somewhat in the middle. Substantively, Justice Kennedy argues that the jurisdiction of the CWA extends to those waters and wetlands that possess a "significant nexus" to waters that are navigable, were navigable or could be made navigable. Kennedy argues that the surface connection that Justice Scalia sees as a prerequisite for CWA jurisdiction is one form of a "significant nexus", but is not the only form. Kennedy suggests that a wetland or water body that filters water, performs the functions of flood control and helps with run off storage has a "significant nexus" with navigable waters. Kennedy then states that if the jurisdiction of the Corps or CWA as to a particular water body or wetland comes under question, such jurisdiction is proper if the water body or wetland has a significant nexus with one or more "navigable waters". Determining whether this "significant nexus" exists is a question of fact and will be determined on a case-by-case basis.

Significance of 4-1-4 Split Vote

The effect of this case is less certain than many other Supreme Court cases because, as a matter of law, no Supreme Court ruling carries the force of law unless it is agreed to by five of the nine Justices. In this case, the only thing that five Justices agreed upon was that the case will be sent back to the circuit court for further fact determination.

The likely key to determining whether the Clean Water Act has jurisdiction over the wetlands at question in this case, then, is determining under what conditions five or more Justices would agree that the wetlands are "waters of the United States". Four Justices already believe that the wetlands qualify as "waters of the United States" (Stevens and the three Justices that agreed to his opinion). So the U.S. Army Corps of Engineers needs to satisfy only one (or more) other Justice that the wetlands are "waters of the United States."

To convince Justice Scalia and the Justices that agreed to his opinion, the wetlands must satisfy his two part test. To convince Justice Kennedy, the wetlands must only have a "significant nexus" to a navigable water.

Since the "significant nexus test" is one part of Scalia's test, Justice Kennedy who requires only the "significant nexus test," will always be satisfied before Scalia (and the three Justices that agreed to his opinion).

Therefore, the test advocated by Kennedy (the wetlands must have a significant nexus with "navigable waters" in order to fall under the jurisdiction of CWA) is likely to be the key to determining which wetlands fall within the Clean Water Act jurisdiction.

For more information, please contact Linda H. Bochert at 608.283.2271, or lhbochert@michaelbest.com.

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