Rapanos Blog

Wetlands "guidance" from the Corps and EPA

On June 5, 2007, the EPA and the Corps issued their much-awaited "guidance" on how the agencies intend to implement the Rapanos decision.  Unfortunately for the regulated public, it's same-old same-old.  The agencies declare that they will not assert jurisdiction over (1) swales and erosional features, and (2) ditches lying wholely in upland areas.  Besides these very minor exceptions, the agencies intend to assert their authority to the fullest, using as broad an interpretation as possible for both the tests set forth in the Rapanos plurality and Justice Kennedy concurring opinions.

The agencies state that they will continue to assert jurisdiction over wetlands "adjacent" to nonnavigable tributaries, as well as those directly abutting navigable waters, without establishing a significant nexus between those wetlands and the waterway.  The italicized point is critical, because it reveals the agencies' interpretation of the Rapanos plurality opinion.

The plurality opinion sets forth (at least) two conditions to the assertion of jurisdiction over wetlands (and these apply whether or not the adjacent waterway is navigable).  First, the wetland must be hydrologically connected to the waterway.  Second, the connection between the wetland and the waterway must be such as to make it impossible to distinguish where the wetland begins and the water ends.  The agencies ignore both requirements:  they state that a hydrological connection is unnecessary for wetlands abutting a traditional navigable waterway, and that only a "surface water connection" is necessary to establish jurisdiction over wetlands "adjacent" to nonnavigable tributaries.

Although one might plausibly argue that under Justice Kennedy's view, wetlands directly abutting navigable waterways are conclusively presumed to bear the requisite significant nexus, the same cannot be said (at least in the absence of new regulations that make categorical determinations for wetlands adjacent to various types of tributaries) for wetlands adjacent to nonnavigable waterways (such as the ditch at issue in Carabell, the Rapanos companion case).  Therefore, because the agencies cannot assert jurisdiction over wetlands "adjacent" to nonnavigable tributaries under the Rapanos plurality without a finding of "indistinguishability" (for lack of a better word), the agencies must establish a significant nexus, on a case-by-case basis.  That, however, they disclaim any intent to do.

Thus, the new guidance is really anything but, and the agencies' continued failure to clarify the rules under which the regulated public must operate just underscores the need for the Supreme Court to step into the fray again.

Johnson v. U.S. cert petition filed

Last Friday PLF filed a petition for writ of certiorari with the U.S. Supreme Court, seeking review of the First Circuit Court of Appeals' recent decision in United States v. Johnson, a Rapanos-type case from Massachusetts.

The case concerns the Johnson family, which has farmed cranberries near Carver, Mass., for the last several decades.  Back in the 1990s EPA brought a civil enforcement action against the Johnsons, contending that they had discharged pollutants into navigable waterways without a Section 404 permit.  In fact, the only thing the Johnsons did was routine construction and maintenance of their cranberry bogs (e.g. moving sand), which are several miles from the nearest navigable-in-fact waterway.   The district court found for the U.S., and concluded that because a hydrological connection existed between the bogs and the river, jurisdiction was present.  While that decision was on appeal, the Supreme Court decided Rapanos.  The First Circuit therefore remanded the case to the district court, directing the lower court to assess whether jurisdiction over the bogs obtains under either the Rapanos plurality or the Justice Kennedy concurrence test.

In PLF's cert petition, we ask for the Court to resolve the Circuit split already existing between, on the one hand, the First Circuit, and on the other hand, the Seventh and Ninth Circuits, over how to interpret Rapanos.  The First Circuit has held that jurisdiction may be proved under either the plurality or the Kennedy concurrence test, whereas the Seventh and Ninth hold that only the Kennedy test is viable.  The specter of conflicting legal rules, and the extreme difficulty for the regulated public to operate under an "either/or" legal regime, we believe make the Johnson case cert-worthy.