Columnists

Regulatory Developments

Michael C. Ford Attorney

Polsinelli Shughart, PC

Waters Remain Unsettled After Rapanos

Dec/Jan 2006/7

The regulatory waters remain choppy in the wake of the United States Supreme Court’s watershed decision last summer in Rapanos v. United States.1  Rapanos addressed the long-contentious issue of the extent of agency jurisdiction under the Clean Water Act, and specifically involved the Corps’s asserted jurisdiction over certain wetlands and tributaries under CWA § 404. The majority of the Justices rejected the "hydrologic connection" test adopted by the Corps and lower court (conferring agency jurisdiction over any water in any way hydrologically connected to a navigable-in-fact water). However, the Justices did not agree on what the correct criteria should be, instead offering two radically differing interpretations of CWA jurisdiction.

The Corps and EPA initially acted quickly in the wake of Rapanos, committing to issuing joint guidance within a few weeks, and instructing its field staff to avoid jurisdictional determinations or the referral of enforcement actions in the meantime in cases not involving clearly jurisdictional i.e. navigable-in-fact waters.2  The Corps stated that it anticipates the guidance will likely "make some changes in how we describe and document the justifications that underlie some of our CWA jurisdictional determinations,"3  suggesting it may view its response to Rapanos as simply involving more paper work rather than any substantive restriction on CWA jurisdiction. However, the Corps has understatedly acknowledged that Rapanos "raises questions about the jurisdiction of the Clean Water Act, including Section 404, over some intermittent and ephemeral streams and their adjacent wetlands."4 

The courts have not waited for additional agency guidance, issuing several post-Rapanos decisions to date. The courts have struggled with the threshold question of which test to apply, and perhaps not surprisingly, have arrived at three different conclusions: Kennedy’s "significant nexus," Scalia’s "relatively permanent," and "either/or."5  The Department of Justice (litigation counsel for EPA and the Corps) has taken the either/or approach: CWA jurisdiction exists if the waters are "relatively permanent" or have a "significant nexus."6 

It did not take long for Rapanos to torpedo an agency enforcement case. In the first post-Rapanos ruling, the district court in U.S. v. Chevron Pipe Line Co., a case involving oil discharges into non-navigable, intermittent streams, first dismissed the significant nexus test as providing "no guidance on how to implement its vague, subjective centerpiece,"7  and appeared to rely primarily on the "relatively permanent" criteria (as well as existing Fifth Circuit law, which is notably restrictive of jurisdiction). The court found the unnamed tributary into which oil was spilled to be non-jurisdictional, thus absolving Chevron of liability.8  DOJ has reportedly elected not to appeal this case.

Jurisdiction was upheld by the Ninth Circuit in Northern California River Watch v. City of Healdsburg, over the City’s sewage discharge to a water-filled rock quarry immediately adjacent to a river.9  The Court found a significant nexus between the quarry and the navigable-in-fact river based on several factors, including a seep from the quarry directly to the River; a surface connection when the River overflows; drainage from the quarry to the River; the presence at the quarry of wildlife observed in the River; and an increase in pollutant levels via the underlying common aquifer in the River due to the quarry.10  DOJ subsequently filed a motion requesting that the court clarify that the "relatively permanent" test should also apply i.e. adopt the "either/or" approach.

Beyond agency guidance and the case law, the waters could be whipped up further by agency rulemaking or legislative action. The Corps was roundly criticized in Rapanos for not issuing clarifying regulations, and urged to quickly do so, but for the moment, the agencies appear preoccupied with completi ng the promised guidance. The recent shift in the Congressional balance of power may also increase the possibility of legislation such as last year’s stalled Clean Water Authority Restoration Act of 2005, which would counteract Rapanos by enshrining the broadest possible CWA jurisdiction as the law of the land.11  So while the jurisdictional tide appears to be receding, it is still too early to tell how far it will go, or where it will end up.

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Revised: 05 May 2010 13:10:31 -0400