Transcript Top 15 Ways to Annoy Attorneys You Work With

Wetlands and Rapanos – An Evolving,
Ephemeral Concept
IMA – North America
Industrial Minerals Technology Workshop, March 5-7,
2007
Robert W. Lawrence, Esq.
(303) 892-7409
[email protected]
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
The issue
• Long-standing dispute on scope of Clean
Water Act (“CWA”) § 404 jurisdiction
– Section 404(a) of CWA authorizes Corps (or a
state with an approved program) to issue a permit
“for the discharge of dredged or fill material into
the navigable waters at specified disposal sites.”
• Query: How broad is the jurisdictional reach
of “navigable waters”
– Congress defined term ambiguously in CWA as
“waters of the United States”
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
In the beginning . . .
• U.S. v. Riverside Bayview, 474 U.S. 121
(1985)
– Issue: whether wetland adjacent to a navigable
water is within the scope of CWA Section 404
jurisdiction
– Unanimous opinion: Justice Byron White found
jurisdiction on basis of adjacency to navigable
water
• not because of hydrological connection
• Court emphasized role of wetlands in the overall ecology
and ecosystem
• upheld Corps’ interpretation of waters of the United
States
“include wetlands
thatStreet,
‘actually
abutted
1550 Seventeenth
Suite 500, Denver,
CO 80202on’ Tel: 303.892.9400
Davis Graham
& to
Stubbs
www.dgslaw.com
traditional navigable
waters”
LLP
The migration of birds
• Solid Waste Agency of Northern Cook County
v. U.S. Army Corp. of Engineers (“SWANCC”)
(2001)
– Supreme Court struck down “migratory bird rule”
which extended Corps’ jurisdiction to intrastate
waters which are or could be used as habitat by
migratory birds.
– Court found no Congressional intent to extend
CWA jurisdiction to such isolated, intrastate ponds
– Majority identifies “significant nexus” test - whether
there is a significant nexus between water body at
issue and
interstate navigable
water
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
Davis Graham
& Stubbs
LLP
www.dgslaw.com
Scrambling in the aftermath of
SWANCC
• EPA/Corps quickly issue legal memo
– SWANCC applies narrowly; focuses on
isolated, non-navigable intrastate waters
– But EPA/Corps never issued a final postSWANCC rule
• Many lower courts followed majority
“significant nexus” test
• Nearly 20 appellate circuit court
decisions post -SWANCC
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Finally, Rapanos
• June19, 2006 – U.S. Supreme Court Issues
Consolidated Cases of Rapanos v. United
States and Carabell v. U.S. Army Corps of
Engineers (“Rapanos”)
– Purports to define scope of Corps jurisdiction over
wetlands under CWA § 404
– But doesn’t resolve conclusively many questions
of CWA § 404 jurisdiction found at industrial
minerals sites, especially sites in western U.S.
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Jurisdictional Waters Are Still
Muddy
• Why? Because of how Supreme Court
decided Rapanos
–
–
–
–
Justice Scalia’s 4 Justice “plurality” opinion
Justice Kennedy’s solo concurrence
Justice Steven’s 4 Justice dissent
Five Justices agreed to vacate and remand the
cases
• But, a majority could not agree on the proper approach
for determining jurisdiction over wetlands/tributaries
under CWA
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
What is the effect of
a “plurality” opinion?
• Lower courts commonly do not view plurality
opinions as creating binding precedent
• Chief Justice Roberts’ view:
– “It is unfortunate that no opinion commands a
majority of the Court on precisely how to read
Congress’ limits on the reach of the Clean Water
Act. Lower courts and regulated entities will now
have to feel their way on a case-by-case basis.”
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Does a plurality opinion decide
anything?
• When a fragmented Court decides a case
and no single rationale explaining the result
enjoys the assent of five Justices, the holding
of the Court may be viewed as that position
taken by those members who concurred in
the judgments on the narrowest
grounds. See Marks v. U.S. (1977)
– But in Rapanos, the Scalia plurality and Kennedy
concurrence agreed upon the result – and that’s
about it!
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
Davis Graham & Stubbs
www.dgslaw.com
LLP
Rapanos – just the facts
• Mr. Rapanos filled in 54 acres of wetlands at
three different sites without a permit
– Nearest body of navigable water was 11-20 miles
away
– Wetlands hydrologically connected by drains or
surface water connections to navigable waters,
but did not directly abut navigable waters
– Corps had informed Rapanos that wetlands were
waters of the U.S. subject to jurisdiction. Rapanos
proceeded regardless. U.S. initiated enforcement
action against him for violating CWA § 404.
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Carabell facts
• Carabell sought a permit from the Corps to fill in forested
wetlands and construct over 100 condos
• A man-made ditch was located along one side of the wetland,
separated from the wetland by a four-foot-wide manmade berm
– Berm itself was largely impermeable and blocked drainage from the
wetland, but may have infrequently overflowed
• Corps determined that Carabell’s property provided water
storage functions that, if destroyed, could result in an increased
risk of erosion and degradation of water quality in a downstream
drain, a creek, and ultimately Lake St. Clair, located a mile
away
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Lower Court Decisions in
Rapanos
• In both Rapanos and Carabell, the district
court found that federal CWA jurisdiction
existed over the respective wetlands
• On appeal, the Sixth Circuit Court of Appeals
affirmed, ruling against the property owners
and in favor of the Corps. Rapanos and the
Carabells petitioned the Supreme Court to
accept their cases, and the Supreme Court
did so.
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
What happened in the
Supreme Court?
• Justice Scalia obtained the votes of Chief Justice
John Roberts, Jr., Justice Clarence Thomas and
Justice Samuel Alito for “plurality”, but not a “majority”
• Under plurality opinion, the Corps’ CWA jurisdiction is
substantially reduced:
– Ephemeral waters, dry washes, etc., are not jurisdictional
waters
– Relatively permanent, standing or flowing bodies of water
would fall within the scope of jurisdictional waters under the
CWA
– Wetlands must have a continuous surface connection to
bodies that are “waters of1550
the
United States” in their ownTel: 303.892.9400
Seventeenth Street, Suite 500, Denver, CO 80202
Davis Graham
&
Stubbs
www.dgslaw.com
right
LLP
Kennedy concurrence retains
significant nexus test
• The Corps’ jurisdiction over wetlands depends upon
the existence of a significant nexus between the
wetlands in question and navigable waters in the
traditional sense
• Significant nexus between a wetland and a navigable
water must be evaluated based upon the CWA’s
objectives of restoring and maintaining the chemical,
physical, and biological integrity of the nation’s
waters
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Kennedy concurrence (cont.)
• In the Carabell case, Justice Kennedy said Corps
improperly based jurisdiction solely on fact that
wetland was adjacent to ditch opposite berm on
property’s edge.
• Under either Scalia or Kennedy approach, “mere
adjacency” to a tributary is not enough to establish
jurisdiction. Kennedy would require “a more
significant inquiry, based on the significant nexus
standard”
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
When Does Jurisdiction Exist?
(Plurality)
• “Waters of the United States” are “only relatively
permanent, standing or flowing bodies of water
forming geographic features that are described in
ordinary parlance as streams, oceans, rivers and
lakes”
– Terms suggest continuously present, fixed bodies of water,
as opposed to ordinarily dry channels through which water
occasionally or intermittently flows
– Continuous flow of water in a permanent channel generally
is required for jurisdiction; none of these terms encompasses
transitory puddles or ephemeral flows of water
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
When does CWA jurisdiction not
exist? (Plurality)
• “Waters of the U.S.” does not include ephemeral
streams, wet meadows, storm culverts, sheet flows
during storm events, drain tiles and drainage ditches
or dry desert arroyos
– does not include channels through which water flows
intermittently or ephemerally, or channels that periodically
provide drainage for rainfall
• Note: by requiring waters to be relatively permanent, Court was
not necessarily excluding streams, rivers or lakes that might dry
up in extraordinary circumstances such as drought or seasonal
rivers from jurisdiction. “Common sense and common usage
distinguish between a wash and a seasonal river.” Scalia
Opinion, footnote 5.
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Plurality’s treatment of wetlands
• Only wetlands with a continuous surface connection to water
that is a water of the United States, so that there is no clear
demarcation between such water and the wetlands, are
“adjacent to” waters of the United States and thus subject to
CWA jurisdiction
– Wetlands with intermittent, physically remote hydrologic connection
to “waters of the United States” lack necessary connection to
jurisdictional waters
– Under plurality opinion: 1) the adjacent channel must contain a
relatively permanent body of water connected to traditional
interstate navigable water; and (2) wetland must have a continuous
surface connection with that water, making it difficult to determine
where the water ends and the wetland begins
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
When does CWA jurisdiction
exist? (Kennedy concurrence)
• Must be a significant nexus between the wetlands in
question and navigable waters in the traditional
sense
– nexus exists if wetlands, either alone or in combination with
similarly situated lands in region, significantly affect
chemical, physical, and biological integrity of other
‘navigable’ waters
• Disagreed with plurality views that Corps and EPA have
jurisdiction only over relatively permanent, standing or flowing
bodies of water, and not over intermittent or ephemeral streams
• Disagreed with plurality that wetlands are jurisdictional only if
they bear a continuous surface-water connection to water
bodies that are waters of the United States in their own right
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Limitations on CWA jurisdiction
(Kennedy concurrence)
• Allowing jurisdiction over wetlands whenever a
wetlands lies along a ditch or a drain, however
remote and insubstantial, that eventually may flow
into a navigable water, goes too far
– The word navigable must be given some effect
– If wetland’s impact on water quality is speculative or insubstantial,
they would not be jurisdictional
– Corps standard for jurisdiction over tributaries – that it feeds into a
navigable water or tributary thereof and possesses an ordinary high
watermark – is too wide open
– Mere hydrologic connection not enough in most cases – connection
may be too insubstantial to establish nexus with navigable waters
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
U.S. v. Chevron Pipeline
(N.D. Tex.)(June 2006)
• Intermittent Stream
– Dry, except in significant rainfall events
• Followed prior 5th Circuit precedent and
Scalia test
• But court noted that government failed to
satisfy Kennedy test as well
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
U.S. v. Evans
(M.D. Fla.)(Aug. 2006)
• Discharge of sewage into creek that
constituted headwaters of tributary of
navigable river
• CWA jurisdiction can be found if either the
Scalia or Kennedy tests are satisfied
• Court found CWA jurisdiction under Scalia
test
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Northern California River Watch
v. City of Healdsburg (9th Cir.)
(Aug. ’06)
• 58 acre water-filled quarry pit separated from
navigable river by levee
• CWA jurisdiction found under Kennedy test
– “Mere adjacency” not sufficient for jurisdiction, but
• Significant physical nexus (water seeping into river; river
overtops levee in flood)
• Biological nexus (wildlife)
• Chemical nexus (increased chloride levels in river)
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
U.S. v. Gerke Excavating, Inc.
(7th Cir.)(Sept. ‘06)
• Kennedy test adopted
• Case remanded for further fact finding
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
U.S. v. Johnson
(1st Cir.)(Oct. ’06)
• CWA jurisdiction can be found if either
the Scalia or Kennedy tests are satisfied
• Case remanded for further fact finding
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
U.S. v. Kincaid Trust
(E.D. Mich.)(Nov. ’06)
• Acknowledges both Scalia and Kennedy
tests
• Beach grading in wetland area violated
CWA
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Sierra Club v. USACE
(M.D. Fla.)(Nov. ’06)
• Development of wetlands
• References both Scalia and Kennedy
tests
• Cites Johnson and Gerke
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Envt’l Protection Info. Center v.
Pacific Lumber Co. (N.D.
Cal.)(Jan. ’07)
• Streams impacted by sediment from logging
• Kennedy test followed per N. Cal. River
Watch
• Hydrologic connection established; but no
evidence that streams “significantly affect the
chemical, physical, and biological integrity of
other covered waters”
• Therefore, not navigable waters under
Rapanos
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Simsbury-Avon Preservation
Society v. Metacon Gun Club
(D.Conn.)(1/07)
• Lead from shooting range located in wetland
• CWA jurisdiction can be found if either the
Scalia or Kennedy tests are satisfied
• No surface water connection – failed Scalia
test
• Analytical testing revealed only “potential
exposure” to elevated lead levels; thus effects
on water quality are speculative or
insubstantial – fails Kennedy test
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
National Ass'n of Home Builders v. U.S.
Army Corps of Engineers, D.D.C.
(1/30/07)
• “Tulloch II” rule violates CWA
• EPA may not enforce the Tulloch II rule. The rule governs
when "mechanized earth-moving equipment" results in
discharge of dredged/fill material subject to permitting under the
CWA
– The rule aims at clarifying when excavation activities near lakes
and rivers result in "incidental fallback" of dredged material that is
deposited in the water, which would not require a permit, and when
the dredged material constitutes a discharge subject to a permit.
– Rule defines incidental fallback as "the redeposit of small volumes
of dredged material that is incidental to excavation activity ... when
such material falls back to substantially the same place as the initial
removal."
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Tulloch II Rule Invalidated (Cont.
• The National Association of Home Builders
(lead plaintiff in lawsuit) says decision means
that homebuilders and developers "do not
need a federal Clean Water Act permit to
operate construction equipment in wetlands
unless they are actually dredging or filling
them in"
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com
Baccarat Fremont Developers LLC v. U.S.
Army Corps of Engineers
(Cert. Denied. U.S. S.Ct. 2/20/07)
• Court declined to decide whether Corps is authorized
to restrict development on wetlands separated from
adjoining streams and lakes by man-made ditches
– let stand Ninth Circuit decision that Corps need
not show "significant hydrological and ecological
connection" between wetlands and adjoining
streams in order to exert authority over the
wetlands (Baccarat Fremont Developers LLC v.
U.S. Army Corps of Engineers, 425 F.3d 1150 (9th
Cir. 2005)
Davis Graham & Stubbs
LLP
1550 Seventeenth Street, Suite 500, Denver, CO 80202
Tel: 303.892.9400
www.dgslaw.com