From the pages of
Sublette Examiner
Volume 6, Number 14 - June 29, 2006
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Landmark water decision issued

by Cat Urbigkit

Last week, the United States Supreme Court issued a decision that could turn the current U.S. Army Corp of Engineers permitting system on its head. The majority opinion in the case, Rapanos v. United States, was written by Justice Antonin Scalia and joined by three other justices (Chief Justice John Roberts, Justices Clarence Thomas and Samuel Alito).


In 1989, John Rapanos backfilled wetlands on a 54-acre piece of Michigan property he owned and sought to develop. The land has a sometimes-saturated soil condition, but the nearest body of navigable water is 11 to 20 miles away. U.S. Army Corps of Engineers regulators informed Rapanos that his saturated fields were “waters of the United States,” which could not be filled without a permit. Rapanos backfilled the wetlands without a permit, resulting in 12 years of litigation before last week’s decision. Since the Clean Water Act imposes fines and criminal liability for fines, Rapanos was faced with the possibility of 63 months in prison and hundreds of thousands of dollars in both criminal and civil fines.

According to the high court, the average applicant for an individual wetlands fill permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 – not counting costs of mitigation or design changes.

Expanding regulation

The court’s opinion noted that there has been an immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five federal administrations. In the last 30 years, the Corps and the Environmental Protection Agency have interpreted their jurisdiction over “the waters of the United States” to cover 270-to-300-million acres of swampy lands in the United States.

“And that was just the beginning,” the court wrote. “The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit — whether man-made or natural, broad or narrow, permanent or ephemeral — through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated ‘waters of the United States’ include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory ‘waters of the United States’ engulf entire cities and immense arid wastelands. In fact, the entireland area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a ‘water of the United States.’ ”


The Corps’ current regulations interpret “waters of the United States” to include, in addition to traditional interstate navigable waters and “all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” as well as tributaries of such waters and wetlands adjacent to such waters and tributaries.

The Rapanos case was consolidated with three others to bring the focus on four Michigan wetlands that lie near ditches or man-made drains that eventually empty into traditional navigable waters. The question before the court is whether these four areas constitute “waters of the United States” subject to federal regulation and oversight. Lower courts decided that they were within federal jurisdiction because they were “adjacent to other waters of the United States.”

But the nation’s highest court did not agree. The majority opinion noted: “We need not decide the precise extent to which the qualifiers ‘navigable’ and ‘of the United States’ restrict the coverage of the act. Whatever the scope of these qualifiers, the Clean Water Act authorizes federal jurisdiction only over ‘waters.’ The only natural definition of the term ‘waters,’ our prior and subsequent judicial constructions of it, clear evidence from other provisions of the statute, and this Court’s canons of constructiona ll confirm that ‘the waters of the United States’ cannot bear the expansive meaning that the Corps would give it.”

The court went through various definitions of terms, adding that they all connote “continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows” and not “transitory puddles or ephemeral flows” of water.

The majority opinion stated: “ The restriction of ‘the waters of the United States’ to exclude channels containing merely intermittentor ephemeral flow also accords with the common sense understanding of the term. In applying the definition to ephemeral streams, wet meadows, storm sewers and culverts, directional sheet flow during storm events, drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody. The plain language of the statute simply does not authorize this ‘Land Is Waters’ approach to federal jurisdiction.”


The court ruled: “In sum, on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as “streams, oceans, rivers, [and] lakes. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of the ‘the waters of the United States’ is thus not based on a permissible construction of the statute.”

In the Rapanos case, it was argued even if the ditches were not “waters of the United States,” the wetlands were “adjacent” to remote traditional navigable waters in virtue of the wetlands’ “hydrological connection” to them. The court noted, “This statement reflects the practice of the Corps’ district offices, which may “assert jurisdiction over a wetland without regulating the ditch connecting it to a water of the United States.”

The ruling stated that only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the act.

“Wetlands with only an intermittent, physically remote hydrologic connection to “waters of the United States ... lack the necessary connection to covered waters ... ” the ruling stated.

The opinion concluded, “In any event, a comprehensive national wetlands protection act is not before us, and the wisdom of such a statute is beyond our ken. What is clear, however, is that Congress did not enact one when it granted the Corps jurisdiction over only ‘the waters of the UnitedStates.’”


Justice John Paul Stevens filed a 26-page dissenting opinion, in which Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. Breyer also filed a separate dissenting opinion.

The majority opinion was critical of the dissent, stating: “In an opinion long on praise of environmental protection and notably short on analysis of the statutory text and structure, the dissent would hold that ‘the waters of the United States’ include any wetlands ‘adjacent’ (no matter how broadly defined) to ‘tributaries’ (again, no matter how broadly defined) of traditional navigable waters.” The opinion noted that the dissent would permit the Corps to give a “limitless scope” to the Clean Water Act.

It continued, “The dissent’s exclusive focus on ecological factors, combined with its total deference to the Corps’ ecological judgments, would permit the Corps to regulate the entire country as ‘waters of the United States.’

Justice John Roberts filed a separate concurring opinion in the case, as did Anthony Kennedy. Roberts wrote: “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

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