U.S. Supreme Court Addresses the Scope of Federal Wetlands Regulation

The question was how far upstream could the Corps of Engineers go in regulating wetlands. We don’t have the answer yet. What we do know is that the question challenged even the Supreme Court of the United States as evidenced by the opinion issued in the combined cases of Rapanos v. United States and Carabell v. United States Army Corps of Engineers on June 19, 2006.

Both cases appear to be victories for the landowners. Violations charged against them for not obtaining wetlands permits were thrown out by the Supreme Court. But the landowners are not out of the wetlands yet. Both cases were sent back to the originating court, a District Court in Michigan, for reconsideration. It could still be found that these landowners required permits for their activities in wetlands. More importantly, the landowners have been sent back to square one of a process that has already been going on for seventeen years at considerable financial expense. Adding to the uncertainty, the Supreme Court did not provide a clear standard that the District Court, the Corps of Engineers, or any landowner looking for assurance, could use in the future to determine if a permit was required.

All nine justices agreed that the Corps of Engineers’ permitting authority under the Clean Water Act goes beyond traditional navigable waters, or those on which a boat can float, but disagreed on how far from navigable waters that authority goes. Their ultimate decision was five to four, as close to even as they can get. Four justices, the minority, thought that the Corps’ authority beyond actual navigable waters was practically unending, due to its obligation to protect water quality. Five justices, the majority, thought the Corps had probably exceeded its authority. They set forth two separate standards for determining whether wetlands are regulated and a permit to impact them is required.

One standard states that impacts to wetlands would only require a permit if the wetlands are connected to a navigable water body like a stream or river by a surface connection that flows “relatively permanently” or contains “the ordinary presence of water”. The Court described a connected wetland as one in which it was “difficult to determine where the %u2018water’ ended and the %u2018wetland’ began.” This standard was agreed upon by four justices. These justices would not that require that a permit be obtained to fill wetlands that were connected to a navigable water by storm sewers and culverts and man-made drainage ditches in which water flowed intermittently.

A fifth justice provided a different, less clear cut standard than the other four. Justice Kennedy rejected his associates’ requirement that permits were only necessary for impacts to wetlands that were continually connected to navigable water. He held a permit was required for any impacts to wetlands that could affect the quality of traditional navigable water. Justice Kennedy recognized that this standard required the Corps of Engineers to analyze the downstream impacts of any proposed filling in wetlands and to make a separate determination for each case brought before them.

In interpreting Supreme Court opinions, when two standards are presented, the narrower standard becomes the prevailing one. In this case, that appears to be Justice Kennedy’s “significant effect on water quality” standard, as it causes less of a change to existing Corps policy. This standard essentially leaves us in a “business as usual” status in which the Corps makes a determination on whether a permit is required or not on a case-by case basis. It is expected that cases challenging the Corps’ determinations will continue to be filed in the future. This situation will continue until the Corps develops regulations through a public participation process, clearly defining when a federal wetlands permit is required, or Congress itself amends the Clean Water Act to provide a clear standard.

This case is of limited importance in Virginia, as our State Water Control Law requires that a permit be obtained from the Virginia Department of Environmental Quality for impacts to any wetland. The primary impact of the Supreme Court’s decision on the citizens of Virginia relates to whether a landowner must also get a federal permit from the Corps of Engineers in addition to the Virginia permit for proposed impacts to wetlands.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2018.

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