The U.S. Supreme Court has overturned an expansive definition of federal jurisdiction over wetlands claimed by the Environmental Protection Agency and Corps of Engineers under the Clean Water Act. However, the court failed to agree on a proper test for determining federal jurisdiction over wetlands adjacent to drainage ditches.
The court ruled June 19 in two cases involving Michigan land developers and the Clean Water Act Section 404 federal wetlands permitting program. In a 5-4 decision in the consolidated cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, the court held the Corps and EPA exceeded their authority under the Clean Water Act.
The justices vacated judgments of the 6th U.S. Circuit Court of Appeals that had upheld federal jurisdiction over wetlands connected to navigable waters that are used, or could be used, in interstate commerce, by a series of drainage ditches and non-navigable creeks, as well as wetlands separated from a drainage ditch by a berm. The court remanded the cases to the lower court for further proceedings.
Court: Wetlands decision making will be case by case
While five justices agreed to overturn the appeals court, one of them, Justice Anthony Kennedy, called for a case-by-case approach, rather than an across-the-board reduction in the Corps' regulatory role. As a result of the split opinion, Chief Justice John Roberts Jr. said lower courts and regulated entities would have to "feel their way" on a case-by-case basis.
An analysis by Washington law firm Van Ness Feldman said the court's decision does little to clarify the boundaries of the federal wetlands permitting program under Section 404. However, it said EPA and the Corps could promulgate a rule that provides guidance to the regulated community, as well as EPA and Corps field staff.
Legislation is pending in Congress that would establish the jurisdictional limit of the Section 404 federal wetlands permitting program addressed by the Supreme Court.
The EPA and Corps currently are pursuing revisions to another part of Section 404, regulations governing compensatory mitigation for authorized impacts to wetlands, streams, and other waters. Additionally, EPA has proposed a rule to clarify that hydropower plants do not require pollution permits under Section 402 of the Clean Water Act if they merely transfer water between two bodies of water. (HNN 6/14/06)
The Supreme Court heard the cases involving the Michigan land developers Feb. 21, the same day it heard arguments in a case involving hydropower project owner S.D. Warren and Section 401 of the Clean Water Act. The high court issued a ruling in that case in May, upholding state Clean Water Act certification in hydropower licensing cases, saying certification is essential to preserve state authority to address a broad range of pollution. (HNN 5/16/06)