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Legislative and Regulatory Update - August 2006 (Vol. 75, No. 12)
Legislative and Regulatory Update
by Scott Harn
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• Supreme Court muddies waterways
On June 19, 2006, the US Supreme Court muddied the waters even further when it comes to deciding whether or not the Army Corps of Engineers has jurisdiction over wetlands that are some distance from navigable bodies of water.

The Clean Water Act was established in 1972 and amended in 1977. It gives authority to the Army Corps of Engineers to regulate the dumping of fill material into the “navigable waters of the United States.”

Over the years, the Corps has extended its reach by attempting to regulate any body of water, including isolated ponds, seasonal washes and irrigation ditches.

In this latest case, the Supreme Court combined two Michigan cases in which the appeals court already ruled against both parties.

The lead case was Rapanos v. United States. Rapanos cleared and filled three parcels that the Corps claims should be regulated as wetlands and are subject to a Clean Water Act permit.

Rapanos was convicted of violating the Act. The Supreme Court denied a review of the case in 2004. The Corps sought several million dollars in fines in a separate civil case, and this is the case the Supreme Court accepted for review.

Rapanos’ property is 20 miles from the nearest navigable waterway, but the Corps maintains that the property is within the drainage system of Lake Huron and two navigable rivers.

The second case, Carabell v. United Stated Army Corps of Engineers, has been combined under the Rapanos case number. The Carabells wanted to fill a portion of their property to build a condominium complex, but the Corps denied them a permit.

Both cases challenged the jurisdiction of the Corps.

Four Justices (Scalia, Roberts, Thomas, Alito) said the Corps had overstepped its authority. Scalia wrote the opinion, stating the Corps acted “beyond parody” by regulating land that contained nothing but storm sewers, drainage ditches and “dry arroyos in the middle of the desert.”

Scalia said the only wetlands subject to federal jurisdiction are those that have “a continuous surface connection” to a navigable waterway and these wetlands must be “relatively permanent, standing or flowing.”

Four Justices (Stevens, Souter, Ginsburg, Breyer) sided with the Corps, going so far as to say that the Scalia group is antagonistic towards environmentalism.

Justice Kennedy did not clearly take either side. While he did remand the case back to the appeals court along with the Scalia group, his opinion was cloudy at best.

Justice Kennedy said the Corps needed to be more specific in defining the tributaries that demonstrate a “significant nexus” to navigable waterways. He said it needed to identify those “categories of tributaries” that were “significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.”

The Corps may now try their hand at establishing new rules to incorporate Kennedy’s “significant nexus” test.

The Pacific Legal Foundation, which represented Rapanos, is claiming a win.

“Today’s decision is a victory for balanced environmental protection—common sense and the rule of law have prevailed,” said Reed Hopper, a principal attorney for Pacific Legal Foundation. “The Court rejected the idea that there are no limits on the federal government’s regulatory authority under the Clean Water Act. It is not the role of the federal government to micromanage every pond, puddle, and ditch in our country.”

“This case was about the abuse of the law by federal agencies,” Hopper said. “It was never about clean water.”

The case is Rapanos v. United States, No. 04-1034.

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