U.S. Justice Department Seeks Clarity On Federal Jurisdiction Over Isolated Wetlands

August 29, 2008 | Roger McEowen


On August 21, the U.S. Justice Department filed a petition with the U.S. Supreme Court in a case from the 11th Circuit that involves the scope of federal jurisdiction over isolated wetlands.  The petition results from the Court’s fractured 2006 opinion in Rapanos, et ux. v. United States Army Corps of Engineers, 126 S. Ct. 2208 (2006)which failed to clear up the uncertainty that existed over the extent of the federal government’s jurisdiction over isolated wetlands.  After the Court’s opinion, lower courts have reached inconsistent conclusions on the issue.  In the 11 th Circuit case, United States v. Robison, et al., 505 F.3d 1208 (11th Cir. 2007),the court ruled that the Clean Water Act’s ban on pollution into “waters of the United States” does not apply to wetlands unless they have a “significant nexus” to traditional streams.  That was the test set forth by Justice Kennedy in his separate opinion in the Rapanos case.  The Justice Department claims that the appropriate test to apply is that of the four-Justice plurality and the four dissenting Justices. 

Note: The Justice Department’s appeal is actually one of two petitions asking the Supreme Court to revisit and clarify Rapanos.  The other petition was filed in June by the plaintiffs in a Fifth Circuit case - Lucas v. United States, 516 F.3d 316 (5 th Cir. 2008).  The Justice Department filed a reply in that case on August 29.  In its reply, the Justice Department urged the Supreme Court to leave the federal appeals court ruling intact. However, in a footnote in the Robison petition, the Justice Department notes that it believes that Robison is a better case for dealing with the issue.

The basic problem is that in Rapanos the Court issued a total of five separate opinions, none of which was a majority opinion.  The plurality opinion of four of the Justices was the narrowest, construing the phrase “waters of the United States” to include only those relatively permanent, standing or continuously flowing bodies of water that are ordinarily described as “streams, oceans, and lakes.”  The plurality opinion also held that a wetland may not be considered “adjacent to” remote “waters of the United States” based merely on a hydrological connection.  Justice Kennedy’s concurring opinion was broader in terms of the scope of federal regulation of isolated wetlands.  Under Kennedy’s concurrence, a wetland constitutes “navigable waters” under the CWA if it possesses a significant nexus to waters that are navigable in-fact.

Needless to say, the multiple decisions in Rapanos have injected tremendous uncertainty into isolated wetlands litigation, with courts splitting on the appropriate test to utilize in determining federal jurisdiction.  Most of the courts that have considered the issue have followed Justice Kennedy’s concurring opinion.  Indeed, in Robison, the court held that the “significant nexus” test of Justice Kennedy provided the governing rule for determining jurisdiction under the CWA.  The defendants were convicted (before Rapanos was decided) of various CWA violations, including discharging in violation of an NPDES permit.  After Rapanos was decided, the defendants argued that the jury instruction on the meaning of “navigable water” was overly broad and invalid.  The water at issue was a creek that flowed into another creek which flowed over 25 miles into a lake (created by damming the creek).  On the other side of the dammed lake, the water flowed for another 20 miles before flowing into another river.  Because the jury was not advised to consider the chemical, physical or biological effect of the creek on the river, the convictions were reversed and the case was remanded for a new trial, with instructions to apply the “significant nexus” test of Justice Kennedy. 

In early 2008, in the Lucas case, the Fifth Circuit upheld the wetlands convictions of a land developer and his company for CWA violations, conspiracy and mail fraud.  Beginning in 1994, the defendant and his business associates had purchased and developed residential plots in Mississippi.  The Corps and EPA asserted jurisdiction over the development, and eventually brought criminal charges for illegal discharges.  The trial court’s jury instructions on the CWA jurisdictional question contained elements of both Rapanos plurality and Kennedy concurrence tests.  The jury convicted, the defendants appealed and the Fifth Circuit affirmed.  But, the Fifth Circuit did not address the post-Rapanos question – which jurisdictional test controls.  Instead, the court avoided the issue by concluding that sufficient evidence supported jurisdiction under either the plurality or the Kennedy test.  The court also ruled that a residential septic tank can constitute a “point source” pollutant requiring an NPDES permit under the CWA, and the appeal argues that septic tank discharge are not "point sources" of pollution under the CWA.

The Justice Department views federal jurisdiction over isolated wetlands to extend to traditional rivers and their tributaries, and wetlands that are adjacent to such rivers and streams.  But, in Rapanos, the four Justices supporting the Court’s main opinion that was written by Justice Scalia, determined that the waters protected by the Clean Water Act are those that are “relatively permanent, standing or continuously flowing bodies of water” connected to traditional rivers or streams that can carry navigation, as well as wetlands with a “continuous surface connection to such water bodies.”  Justice Kennedy, however, said that the Clean Water Act protects wetlands that “possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.”  The four dissenting Justices said that lower courts could apply either the Scalia or Kennedy rationale, although they preferred the long-standing government definition that protected more wetlands from pollution.  The Eleventh Circuit, however, in Robison, followed Justice Kennedy’s approach, with the result that the defendants’ convictions for dumping large quantities of untreated industrial waste water from a pipe-making foundry into a creek that flowed into other permanent streams feeding into navigable waters in the traditional sense.  The Justice department maintains that the creek at issue flowed year-round and fed into a traditional navigable water, and would be subject to federal jurisdiction under the Rapanos plurality and dissenting opinions. 

The response to the Justice Department’s petition in Robison is due September 22, 2008.