On June 19, 2006 the U.S. Supreme Court handed down a decision in both the Rapanos and Carabell cases.  Both cases challenged the jurisdictional reach of the Corps of Engineers in regulating wetlands and were thus consolidated into one case.

     Justices Roberts, Scalia, Thomas, and Alito delivered a plurality opinion stating that the Corps had exceeded their jurisdiction under the Clean Water Act (CWA).  They felt that for a wetland to fall under CWA jurisdiction a permanent surface connection to a navigable waterway was required.  Justices Stevens, Souter, Ginsburg, and Breyer dissented and issued an opinion in support of the current manner in which the Corps interprets the CWA.

     Planted firmly between these two contradictory camps was Justice Kennedy.  Although Justice Kennedy took issue with certain aspects of both the plurality’s and dissenting opinions, he was agreeable to remanding these two cases to the Sixth Circuit, which was the legal outcome of this matter.

     In the near term it appears that the Kennedy opinion will probably have the most influence on jurisdictional decisions.  The EPA and the Corps are reviewing the decision and have promised to issue guidance to help the regulators and the public understand what wetlands are covered under the CWA.

     Justice Kennedy’s opinion keyed on the phrase “significant nexus”.  He felt that if a significant nexus exists between a wetland and a navigable waterway, then the wetland falls under Corps’ jurisdiction.  In this case, Justice Kennedy concluded that neither the Corps nor the lower courts had adequately documented such a nexus, thus the matter was remanded for further consideration.                                                                   

     So, in the mind of Justice Kennedy what constitutes a significant nexus?  The following quotation from the Kennedy opinion summarizes his view on this matter.

“Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters”, if the wetlands, alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense.  When, in contrast, their effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the term “navigable waters”.” Dissecting this language in search of practical guidance is problematic.  Obviously the first problem is defining “significantly affect”.  Swapping significant nexus for significantly affect gains us nothing—one is still faced with that word “significant”.  Ironically, the plurality’s opinion would be of great help with this matter.  If a wetland is not linked to a navigable water by a permanent surface connection, that might represent at least a logical reason to claim that the nexus is not significant.  But Justice Kennedy did not agree with that argument.

     Then there is the issue of “in combination with similarly situated lands in the region”.  What does that mean?  Was Justice Kennedy referring to other wetlands, or nearby upland floodplains, or landscape position? 

     It is not uncommon for Supreme Court decisions to raise more questions than they answer.  But it appears that the Rapanos/Carabell decision has set a new standard in that regard.  It will be interesting to see how the regulatory agencies sort this out.

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