Yesterday the Sixth Circuit issued its decision in United States v. Cundiff, a Clean Water Act civil enforcement action brought against Kentuckian father and son farmers. The basic contention was that the Cundiffs had converted polluted wetlands into cropland, but without the required Section 404 permit. The Cundiffs' property is adjacent to two small streams that flow into the Green River, which flows into the Ohio River. The district court had adopted the Johnson approach to Rapanos---namely, the government may establish jurisdiction under either the Scalia or Kennedy tests. The Sixth Circuit chose to avoid this vital question (just as the Fifth Circuit avoided it in Lucas), holding that, because jurisdiction could be affirmed under either test, it was not necessary to address the Rapanos split decision question.
Nevertheless, the decision is important for giving some additional content to the two Rapanos tests. For example, the court's discussion of the Scalia test makes clear that a surface water connection is necessary, but that the need for a "line drawing problem" between wetland and water may not be as important. Moreover, the court noted that, under the Scalia test, manmade tributaries can serve for jurisdiction.
The court also broke new ground in interpreting the Kennedy significant nexus test. The court's discussion of the relationship between the Cundiffs' property and the downstream navigable river leaves one with the impression that, in the court's view, any wetland that provides traditional wetland functions bears a significant nexus to the downstream navigable waterbody. In a footnote, the court observed that the presence of a significant nexus was confirmed by the fact that a poison deposited on the Cundiffs' property would eventually end up in the downstream navigable river. But this says nothing more than that a hydrological connection is present; and both Scalia and Kennedy agreed in Rapanos that jurisdiction could not be sustained on that basis alone.
Finally, the court seemed to make some rather obvious descriptive errors regarding the case law. For example, the court described the Ninth Circuit's Healdsburg decision as holding that the Kenendy test is usually, but not always, controlling. Also, the court read the Seventh Circuit's decision in Gerke as adopting the Johnson approach. Both of these readings are patently erroneous: the Seventh and Ninth Circuits (and the Eleventh as well) have adopted the Kennedy test alone as controlling.