Are Wetlands Protected Under CWA?

Regulators try to make sense of Supreme Court's response to wetlands cases

When the U.S. Supreme Court agreed to hear the consolidated cases of Rapanos v. United States and Carabell v. United States in 2006, observers hoped the Court would supply much-needed clarification to the federal Clean Water Act’s (CWA) dominion over wetlands. Instead, the Court could not reach a consensus, and regulation and enforcement of the law has been mired in confusion ever since.

In the two cases that comprise Rapanos, arguments centered on whether the government and the Clean Water Act have jurisdiction over wetlands that are not specifically located in or adjacent to navigable waters.

Instead of a majority opinion, the Justices issued five minority opinions on June 19, 2006, that left the scope of CWA unclear. To deal with the regulatory confusion that ensued, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued guidelines on June 5, 2007 to help federal employees determine how to issue permits for filling wetlands, as well as clarifications for initiating enforcement actions.

Significant nexus
To understand the existing confusion over CWA’s jurisdiction, it is important to understand how the Rapanos case came to the Supreme Court. Until the Court’s 2006 review, the issues most recently had been reviewed in a 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County. v. Army Corps of Engineers (SWANCC). In that case, the Court concluded that the reach of CWA was limited to wetlands with a “significant nexus” or connection to navigable waters.

Several U.S. Courts of Appeals decisions followed with a range of opinions interpreting the SWANCC case. An interpretation by the U.S. Court of Appeals for the Fifth Circuit limited the act’s reach more than other courts.

These different opinions about interpreting SWANCC led to more litigation, culminating with the Supreme Court’s review of Rapanos. In this case, the wetlands in question were not clearly part of navigable waters in the traditional definition of waters capable of navigation by ship. As a result, these cases presented difficult fact patterns. The Rapanos wetlands were not even adjacent to navigable waters, but in the government’s thinking, they were connected to navigable waters in some significant way.

The Supreme Court was unable to reach a majority opinion on CWA’s jurisdiction over these types of wetlands. In his plurality opinion, Justice Antonin Scalia limited the scope to “navigable waters.” The opinion, which was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, criticized the government’s "sweeping assertions of jurisdiction over ephemeral channels and drains and its corresponding attempt to regulate ditches, drains, and desert washes far removed from navigable waters."

Justice Anthony Kennedy concurred with the judgment but also concluded that a non-navigable water or wetland and a navigable water may be so close, or potentially so close, that the water or wetland may be deemed a "navigable water" under the act. In other instances, as exemplified by SWANCC, there may be little or no connection.

Agency Memo Outlines Wetlands Criteria

EPA-U.S. Department of the Army Corps of Engineers recently defined their roles in protecting and maintaining wetlands according to the Supreme Court’s Rapanos decision last year. The agencies will assert jurisdiction over the following waters:
• Traditional navigable waters,
• Wetlands adjacent to traditional navigable waters,
• Non-navigable tributaries of traditional navigable waters that are relatively permanent
where the tributaries typically flow year-round or have continuous flow at least
seasonally (for example, typically three months),
• Wetlands that directly abut such tributaries.

The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water:
• Non-navigable tributaries that are not relatively permanent,
• Wetlands adjacent to non-navigable tributaries that are not relatively permanent,
• Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable

The agencies generally will not assert jurisdiction over the following features:
• Swales or erosional features (for example, gullies, small washes characterized by low volume, infrequent, or short duration flow),
• Ditches (including roadside ditches) excavated wholly in and draining only uplands and
that do not carry a relatively permanent flow of water.

The agencies will apply the significant nexus standard as follows:
• A significant nexus analysis will assess the flow characteristics and functions of the
tributary itself and the functions performed by all wetlands adjacent to the tributary to
determine if they significantly affect the chemical, physical, and biological integrity of
downstream, traditional navigable waters.
• Significant nexus includes consideration of hydrologic and ecologic factors.

This information is courtesy of the U.S. EPA.

Justice John Paul Stevens wrote a separate opinion joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer that affirmed the Sixth Circuit’s opinions in both the Rapanos and Carabell cases. These justices concluded there was a sufficient nexus to navigable waters to permit CWA jurisdiction over both sets of facts. This opinion took a very expansive view of the connection necessary to permit regulation over waters at some distance from navigable waters.

Guidance for permitting, enforcement
The mixed opinions and lack of clear guidance from the Supreme Court caused confusion for the regulated community as well as the regulators. In an attempt to guide their staffs, EPA and the Army Corps of Engineers issued a guidance document on the interpretation of Rapanos. According to this guidance, CWA governs traditional navigable waters and wetlands that are “adjacent” to these navigable waters. The term "adjacent," as defined within the guidance and EPA and Corps regulations, means "bordering, contiguous, or neighboring."

The two agencies adopted certain aspects of both Justice Scalia’s and Justice Kennedy’s opinions. From Justice Scalia’s opinion, they regulate non-navigable tributaries of navigable waters. These tributaries must be relatively permanent and have continuous flow at least three months of the year. Also adopted was Justice Scalia’s opinion to regulate wetlands adjacent to navigable waters that have a continuous surface connection to non-navigable tributaries to navigable waters.

From Justice Kennedy’s opinion, the agencies regulate wetlands that have a “significant nexus” to navigable waters, even if the tributaries are not deemed “relatively permanent,” as well as wetlands adjacent to these non-navigable tributaries. Also adopted was Justice Kennedy’s opinion to include wetlands adjacent to, but not directly abutting, a relatively permanent tributary.

How these new rules play out in terms of determining whether to apply for a wetlands fill permit will be determined over the next few years. We may see other cases sent to the circuit courts of appeals and eventually the Supreme Court for further elucidation of CWA’s reach and the ability of the federal government to protect wetlands. The upshot is that the reach has been limited to some extent, and the scope of wetlands jurisdiction has been narrowed. 

Commerce is a deal-breaker
How a Democratic Congress and possibly a future Democratic president might address these issues in terms of amending CWA raises interesting questions. One approach might be to adopt a broader nexus standard to expand on Justice Kennedy’s opinion and include more waterways.

But if amendments are expansive, they could face challenge under the Commerce Clause of the U.S. Constitution, which limits the congressional reach to “interstate commerce.” The New Deal-era Supreme Court greatly expanded the meaning of interstate commerce, but the more conservative courts in recent years have drawn tighter limits on this concept, and have referred to these potential limits in CWA cases.

Congress could impact this entire debate if it considers the potential for wetlands to serve as carbon sinks that would help address or mitigate global warming or climate change. Not only may there be a means of attempting to justify the law’s reach to wetlands, but there may be a move toward incentives to preserve wetlands by granting carbon credits for their protection or creation. Such credits could then be sold to those companies who need to reduce the impact of their own greenhouse gas emissions.

Such market forces could significantly impact these traditional arguments between environmental protection and economic development. Whether it is the Amazon rain forests or wetlands in the United States, market mechanisms can contribute to preservation efforts. While regulation and permitting are critical aspects of protecting wetlands, greater actual protection of wetlands may be possible by looking to the market system and seeing what changes could be made through statutes to form incentives to preserve wetlands.

This article originally appeared in the 08/01/2007 issue of Environmental Protection.

About the Author

Scott D. Deatherage is an environmental attorney with Thompson & Knight in Dallas. He leads the firm's Climate Change and Renewable Energy Practice Group, and regularly advises clients on environmental legal matters, including climate change and greenhouse gas legislation and the effects on corporate strategy to manage both risks and to leverage opportunities.

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