U.S. SUPREME COURT (SORT OF) DEFINES “WATERS OF THE UNITED STATES”

On June 19, 2006, the U.S. Supreme Court case handed down a consolidated decision, captioned Rapanos v. United States, which dealt with the definition of “waters of the United States” in the federal Clean Water Act. This case may have significant impact by lessening the legal requirements the U. S. Army Corps of Engineers’ (Corps) can impose on a landowner, developer or political subdivision that is conducting operations or activities near intermittent or ephemeral flows or wetlands on its lands (e.g., as a condition of securing a 404 permit). The Court’s decision is splintered into numerous opinions and it is difficult, if not impossible, to state the controlling rationale for the decision. While five Justices agreed the cases should be sent back to the lower court for further proceedings, those in the plurality disagreed on the standard the lower court should use in determining whether the wetlands impacted by the land developers’ activities were “waters of the United States.”

Justice Scalia took the narrowest view of the interpretation of the terms “waters of the United States,” holding that “waters of the United States” includes only relatively permanent, standing or flowing bodies of waters, such as streams, oceans, rivers and lakes. He excluded dry channels, through which water flows “occasionally or intermittently,” as well as “transitory puddles 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. . . .” As for wetlands, Justice Scalia would find only those wetlands “with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right within the definition of navigable water and therefore with jurisdiction of the Corps. Wetlands and adjacent water bodies must therefore have an indistinguishable boundary before the Corps can regulate them.

While Justice Kennedy concurred with the outcome of Justice Scalia’s opinion, he rejected the notion that there must be a continuous surface connection for wetlands to be considered “waters of the United States.” Instead, Justice Kennedy relied on a “significant nexus” test. According to Justice Kennedy, if the discharge from the wetlands affects downstream the water quality or the aquatic ecosystem, functions to filter and purify downstream waters or slows surface run-off to prevent flooding or erosion, remote wetlands or waters may be included in the definition of the “waters of the United States.”

It is important to also note that 3 Justices implored the Corps to quickly develop regulations to interpret the term “waters of the United States.” It remains to be seen if the Corps acts swiftly or if it acts at all. In the meantime, lower courts are beginning to interpret the Supreme Court’s ruling. One such court, the U.S. District Court for the District of Northern Texas, blurred the lines of Justices Scalia and Kennedy’s standards in ruling that an intermittent tributary had no “significant nexus” to a distant, navigable-in-fact lake, river or stream. Accordingly, Chevron Pipeline Company was found not liable for an oil spill into a dry channel, because the discharge did not reach a “water of the US.” See, United States v. Chevron Pipe Line Co., N.D. Tex., No. 5:05-CV-293, 6/28/06).

THE FOREGOING IS MERELY A PARTIAL SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL OPINION.