Special Topics in Environmental Management

Will Scalia’s Rapanos Opinion Form Basis of WOTUS Rewrite?

As President Trump’s administration begins the process of rescinding or modifying the Clean Water Rule (CWR) promulgated by the administration of President Obama, the U.S. Supreme Court’s already historic decision in Rapanos v. United States (Rapanos, decided June 19, 2006) acquires even greater significance. Rapanos is not a single opinion. Rather, it is a collection comprising a plurality opinion, concurring opinions, and dissenting opinions—five in total from nine justices—that express different and often conflicting views on the meaning of the Clean Water Act (CWA) phrases navigable waters and waters of the United States (WOTUS) and where the jurisdiction of the federal government begins and ends and, by extension, where state authority takes over. In the case, the opinion issued by Justice Kennedy, and most importantly his explication of the concept of significant nexus, became the legal lynchpin for the CWR and, as a result, the best known and most discussed element of Rapanos.

But all that will now change as the Trump EPA switches its focus from the Kennedy opinion to the plurality opinion, which was written by Justice Scalia and supported by Chief Justice Roberts and Justices Thomas and Alito. Specifically, in his Executive Order directing the Army Corps of Engineers (Corps) and the EPA to develop a fresh definition of navigable waters, Trump specifies that any new definition of that term must be consistent with the Scalia opinion in Rapanos. Those in industry and many state governments who disagree with the implications of the Kennedy opinion, and certainly with how those implications were fleshed out in the CWR, have long insisted that it is the Scalia opinion that provides the clearest and most legally solid guidance for CWA jurisdiction and how navigable waters should be defined. As the EPA/Corps begin their rulemaking, those stakeholders will welcome the new wave of notoriety for Scalia’s opinion that will likely ensue.

Like his other environmental opinions, Scalia’s discussion in Rapanos is a model of clarity, erudition, thoroughness, and wit, qualities recognized even by those who disagree with his conclusions. Anyone whose compliance obligations are or will be affected by the federal definition of navigable waters will benefit by reading the 40-page opinion in its entirety. The Rapanos case was consolidated in the opinion with a related case, Carabell v. U.S. Army Corps of Engineers. The following summary of the Scalia opinion will provide a head start to a full reading.

The Rapanos case

The Rapanos case concerned the unpermitted filling of wetlands at three sites near Midland, Michigan. Two sites were connected to “drains” that joined other waterways that eventually flowed into Lake Huron. One site connected to natural features that also drained into Lake Huron. “It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent, or whether the nearby drains and ditches contain continuous or merely occasional flows of water,” Scalia wrote.

Despite this uncertainty, the United States brought civil enforcement proceedings against the Rapanos petitioners because the three wetlands were adjacent to other waters of the United States and because there were hydrologic connections between the sites and corresponding adjacent tributaries of navigable waters.

The petitioners’ suit in district court to overturn EPA’s enforcement action was denied, and that denial was affirmed by the U.S. Court of Appeals for the 6th Circuit.

Bayview and SWANCC

Scalia states in a footnote that the CWA is a “prosaic, indeed downright tedious statute.” While this is not a compliment, in Scalia’s view, it reinforces the thinking that in writing the term navigable waters, Congress did not intend the term to be imaginatively interpreted to include landscape features that contain and convey water only several days a year—or even less frequently—to actual navigable waters. “The duller and more commonplace meaning [of navigable water] is obviously intended,” Scalia wrote.

Still, the Supreme Court has agreed in several cases that the term navigable waters presented regulatory ambiguities and required judicial illumination. The first critical ruling was United States v. Riverside Bayview Homes (Bayview, 1985). Here, the Court ruled that “the transition from water to solid ground is not necessarily or even typically an abrupt one,” and the Corps must necessarily choose some point at which water ends and land begins. Accordingly, the Court upheld the Corps’s interpretation of the waters of the United States to include wetlands that actually abut traditional navigable waters.

This proregulatory decision was balanced somewhat in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC, 2011). In that opinion, the Court held that Bayview did not establish “that the jurisdiction of the Corps extends to ponds that are not adjacent to open water.”

Scalia wrote that after and despite SWANCC, the Corps did not significantly revise its theory of federal jurisdiction. “The Corps provided notice of a proposed rulemaking in light of SWANCC, but ultimately did not amend its published regulations,” Scalia wrote. “Because SWANCC did not directly address tributaries, the Corps notified its field staff that they ‘should continue to assert jurisdiction over traditional navigable waters … and, generally speaking, their tributary systems (and adjacent wetlands).”

Just as problematically, the lower courts continued to “uphold the Corps’ sweeping assertions of jurisdiction over ephemeral channels and drains as ‘tributaries,’” wrote Scalia, and also “continued to define ‘adjacent’ wetlands broadly after SWANCC.”

Regulation of land use

Scalia wrote that the federal government did not appear to learn from SWANCC that it does not possess unlimited power to regulate any spot of land that may convey through a labyrinthine series of surface and underground conduits a pollutant to a navigable water. Although 10 years old, Scalia’s characterization of this state of affairs summarizes accurately the complaints against current federal CWA jurisdiction and the CWR and is worth quoting fully.

“The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute—during the past five Presidential administrations. In the last three decades, the Corps and the EPA have interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit—whether man-made or natural, broad or narrow, permanent or ephemeral—through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated ‘waters of the United States’ include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory ‘waters of the United States’ engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a ‘water of the United States.’”

Significant nexus

This reading is a direct refutation of Justice Kennedy’s interpretation of significant nexus, a term that does not exist in the CWA and was introduced but not fully explained in SWANCC. In Kennedy’s interpretation of the phrase in Rapanos, any water is jurisdictional if it “either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Scalia and the rest of the plurality see a basic flaw in this thinking. Specifically, Kennedy’s interpretation means that the purpose of the CWA—to clean up the waters of the United States—can be used to effectively rewrite the language in the CWA.

“It would have been an easy matter for Congress to give the Corps jurisdiction over all wetlands (or, for that matter, all dry lands) that ‘significantly affect the chemical, physical, and biological integrity of’ waters of the United States,” wrote Scalia. “It did not do that, but instead explicitly limited jurisdiction to ‘waters of the United States.’”

By imposing a significant nexus on the text of the CWA, Kennedy “has devised his new statute all on his own,” according to Scalia.

Permanent and continuous

As the Scalia plurality reads the CWA and also based on Bayview and SWANCC, statutory jurisdiction is established under two criteria.

First, to be jurisdictional under the CWA, a water body must have a relatively permanent connection to a traditional interstate navigable water. Moreover, jurisdiction should apply to bodies of water that form geographic features, which means, according to the dictionary definition, they are streams, oceans, rivers, or lakes.

“By describing ‘waters’ as ‘relatively permanent,’ we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” Scalia added. “We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months. It suffices for present purposes that channels containing permanent flow are plainly within the definition, and that the dissent’s ‘intermittent’ and ‘ephemeral’ streams—that is, streams whose flow is coming and going at intervals … broken, fitful,’ or ‘existing only, or no longer than, a day’ are not.” (Internal quotes from Webster’s Dictionary.)

Second, a wetland must have a continuous surface connection with a traditional navigable water, making it difficult to determine where the “water” ends and the “wetland” begins. According to Scalia, this connection was explained in Bayview and does not encompass simple hydrologic connections where there is no direct abutment between the wetland and the traditional navigable water.

“Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem of Bayview, and thus lack the necessary connection to covered waters that we described as a ‘significant nexus’ in SWANCC,” wrote Scalia.

Scalia adds that neither the CWA, Bayview, nor SWANCC support the contention that wetlands abutting tributaries to navigable waters are also jurisdictional.

State rights

The plurality opinion further addressed the impact of federal regulation of ephemeral streams and other seasonal flows on the rights of states.

“The expansive theory advanced by the Corps, rather than ‘preserv[ing] the primary rights and responsibilities of the States,’ would have brought virtually all “planning of the development and use … of land and water resources” by the States under federal control,” wrote Scalia. “It is therefore an unlikely reading of the phrase ‘the waters of the United States.’”

“The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land—an authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board,” Scalia adds. “We ordinarily expect a ‘clear and manifest’ statement from Congress to authorize an unprecedented intrusion into traditional state authority. The phrase ‘the waters of the United States’ hardly qualifies.”