By Elizabeth Lake (San Francisco) and Lawrence R. Liebesman (Washington, D.C.)
Originally published 4th Quarter, 2005
On Tuesday, October 12, the Supreme Court agreed to hear two wetlands cases (both from Michigan) that could help clarify the extent of federal jurisdiction under the Clean Water Act and to address the issues that were not reached in the Court’s 2001 decision of Solid Waste Agency of Northern Cook County v. Corps, 531 U.S. 159 (2001) (SWANC). By taking these cases, the Court signaled that it will clarify whether the Clean Water Act jurisdiction extends to wetlands that are a distance from and only tenuously connected to traditionally navigable waters. The Court may also reach the issue of whether an isolated wetland hydrologically separated from a ditch that indirectly connects to a traditionally navigable water is regulated under the Clean Water Act.
The two cases, Rapanos v. United States, 376 F. 3d 629 (6th Cir. 2004) and Carabell v. Corps, 391 F. 3d. 704 (6th Cir. 2004) involved largely overlapping but also somewhat different issues. Rapanos involved a federal enforcement action against a developer for filling wetlands in Saginaw Bay and Midland Counties in Michigan. The wetlands were connected to the nearest navigable water (20 miles away) only by means of a manmade ditch, a non-navigable creek and river that ultimately flowed into Saginaw Bay. The Sixth Circuit narrowly interpreted SWANCC and held that such a tenuous connection was sufficient under the Clean Water Act.
The Carabell case involved an appeal of a Corps permit denial to fill wetlands that were separated from a ditch by an upland berm that blocked surface drainage of water out of the parcel. The ditch then flowed indirectly into several other ditches that ultimately discharged into Lake St. Clair Michigan. The Sixth Circuit held that the wetlands were "adjacent" to navigable waters that provided the significant nexus to establish Clean Water Act jurisdiction. Thus, while both cases deal with the issue of hydrologic connection, the Carabell case also addresses the issue of whether an isolated wetland separated by an upland berm is "adjacent" to a water of the U.S. and can be regulated under the Clean Water Act.
In granting the petitions, the Court accepted two questions:
1) Does the Clean Water Act prohibition on unpermitted discharges to "navigable waters" extend to non-navigable wetlands that do not even abut a navigable water?
2) Does extension of the Clean Water Act jurisdiction to every intrastate wetland with any sort of hydrological connection to navigable waters, no matter how tenuous or remote the connection, exceed the constitutional power of Congress to regulate commerce among the states?
Supreme Court resolutions of these issues could also provide guidance in two pending Ninth Circuit cases and potentially reopen a third that was decided only days after the Supreme Court granted certiorari on the two wetlands cases.
The recently decided Ninth Circuit case, Baccarat Fremont Developers, LLC v. Army Corps of Engineers, Case No. CV-02-03317-CW (N.D. Cal., Oct. 14, 2005), reached both issues currently in front of the Supreme Court. In Baccarat, the commercial developer in Fremont, California, argued that the Corps did not have Clean Water Act jurisdiction over approximately seven acres of wetlands on the site as those wetlands, which were separated by 65-70 feet across a man-made berm from a flood control channel that led to San Francisco Bay, had no current hydrological connection to waters of the U.S. and therefore were not "adjacent wetlands." The Ninth Circuit held that even though there was likely an ecological connection between the wetlands and the flood control channel, the Corps could regulate "adjacent wetlands" based on proximity alone, even if there was no significant hydrological or ecological connection.
The two pending cases, Northern California River Watch v. City of Healdsburg, (9th Cir., No. 04-15442), and San Francisco Baykeeper et al. v. Cargill et al., (9th Cir., No. 04-17554), also revolve around the adjacency issues.
In Healdsburg, the District Court found that (1) the City’s wastewater treatment pond, a former gravel mining pit which was located near the Russian River (separated by a levee) but had no surface hydrological connection with the River, was jurisdictional since it was "adjacent" by virtue of proximity and an underground hydrologic connection and (2) the City’s discharge into the pond required a National Pollution Discharge System (NPDES) permit, since the pond received only partially treated wastewater, which could discharge to the Russian River through a shared underground aquifer. Case No. CV-01-04686-WHA (N.D. Cal., Jan. 23, 2004). In addition to raising the "adjacency" question, the case on appeal also addresses whether the wastewater treatment pond and gravel mining exemptions apply, whether the pond is a "tributary" to the Russian River by virtue of a groundwater hydrologic connection and whether the pond is a "point source" of pollution for purposes of the NPDES requirements.
The Cargill case has bounced for many years between the District Court and the Ninth Circuit. Prior to the SWANCC decision, the District Court had granted summary judgment to the citizen plaintiffs, finding that the water body in question, a man-made bermed salt-processing pond located next to Mowry Slough, which leads to San Francisco Bay, was jurisdictional. Case No. CV-96-2161 (N.D. Cal, Apr. 13, 1998). On appeal following the SWANCC decision, the Ninth Circuit ruled that the lower court decision had been based on the Migratory Bird Rule, and therefore must be vacated and remanded to determine whether another valid basis for jurisdiction existed. 263 F. 2d 963 (9th Cir., Aug. 30, 2001). On remand, the District Court held that the pond was jurisdictional because it is an "adjacent water body." Case No. CV-96-2161 (N.D. Cal., Apr. 30, 2003). On appeal now, in addition to the adjacency issues in front of the Supreme Court, the Ninth Circuit will address whether a "water body" can be found jurisdictional under the adjacency test where the regulations and the case law all refer to adjacent "wetlands," not "water bodies."
Both the Healdsburg and Cargill cases are briefed and awaiting oral argument. It is likely such argument will be delayed until the outcome of the Supreme Court cases is known. The Supreme Court is expected to hold oral argument in the Rapanos and Carabell cases in early 2006 with a decision expected in June 2006.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
