Waters Of The United States
Part Three: The Rapanos Decision

Third in a five-part series. For part one, click here

20 February 2018 | In 1993, a Michigan real estate group headed by June and Keith Carabell decided to build a 130-unit condominium complex on a wetland area alongside a ditch that empties into a drain, which empties into a creek, which empties into Lake St. Clair.

Sound familiar?

Like fellow Michigander John Rapanos before them, the Carabells contacted local authorities.

Unlike Rapanos, they applied for permission to disrupt their forested wetland.

When the Michigan Department of Environmental Quality (DEQ), which handles permitting in Michigan for the Army Corps of Engineers, said the action would flood neighboring properties and muddy downstream waters, the Carabells came back with a more modest plan for a 112-unit complex – one that would still disrupt the wetland, but with roughly one quarter of it restored.

Although Section 404 of the Clean Water Act does allow permitting of projects that damage wetlands – and, indeed, thousands of such permits are granted each year – it’s not granted automatically. First, the application is put out for public comment to see if neighboring residents and local authorities feel it brings something of value, then the plan has to minimize any damage the project may cause, and finally deveopers can offset unavoidable damage by restoring wetlands of equal or greater hydrological value.

The DEQ said the new proposal didn’t meet those criteria, so the Carabells sued, and a state judge ordered DEQ to issue the permit.

That’s when the Army Corps pulled rank.

“Your parcel is primarily a forested wetland that provides valuable seasonal habitat for aquatic organisms and year round habitat for terrestrial organisms,” the Corps wrote in a 2001 letter to the Carrabells, after reviewing public comments and conducting its own visits. “Additionally, the site provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair.”

The Carabells then shifted their legal actions from state to federal courts, where the case bounced around, along with Rapanos’s, until both finally lost in the Sixth Circuit Court of appeals.

In 2005, the Supreme Court agreed to review both cases together to answer the question of whether the term “navigable waters” only included wetlands that are directly connected to “traditionally navigable” waterways.

The review came on February 21, 2006.

More on the Bionic Planet Podcast
This story is accompanied by a two-part series on the Bionic Planet podcast, beginning with Episode 42. Bionic Planet is available on all podcatchers, including RadioPublic, iTunes, Stitcher, and on this device here:

The Shape of Water

I found the oral arguments fascinating, in part because they show that even Supreme Court justices flounder in unfamiliar waters – one reason Congress and the Courts have long delegated rule-making to the agencies charged with implementing laws.

If the back-and-forth of oral proceedings puts you to sleep, you can skip ahead to the next section, “One Question, Three Answers” without losing too much (but I hope you don’t).

We start with Reed Hopper, representing Rapanos pro bono for the Pacific Legal Foundation.

“This is a case of agency overreaching,” he begins. “In this case, the Corps and EPA pushed the very limits of congressional authority, contrary to the plain text of the act and without any clear indication Congress intended that result.”

Justice Samuel Alito, new to the bench like Roberts, then asks his very first question as a member of the Supreme Court:

“Does it make sense to say that any wetland that abuts a traditionally navigable water is covered [by the Clean Water Act], but a tributary that leads right into a traditionally navigable water is not necessarily covered?”

Hopper concedes that wetlands directly adjacent to a river, stream, or lake are covered by the CWA, and Justice David Souter points out there’s a functional reason for that– as opposed to a traditional or arbitrary one.

“The functional reason is that if you put the poison in the adjacent wetland, it’s going to get into the navigable water,” he says. “Once you concede, as I think you have to, that there can be a regulation that goes beyond literally navigable water at the point at which the pollutant is added, then you have to follow the same logic right up through the watershed to any point at which a pollutant, once added, will eventually get into the navigable water.”

Hopper tries to shift the discussion away from hydrology and towards federal overreach.

“The reason that logic does not apply, Your Honor, is because the regulation of  tributaries raises significant constitutional questions that are not implicated by the regulation of a wetland inseparably…”

Souter cuts him off and points out that, if you draw the line too far from traditionally navigable waters, then “evil polluters” would simply “get far enough upstream and…dump anything they want to.”

Hopper counters that we don’t need Army Corps and EPA protection for that, because the polluter would be liable under existing laws – if authorities can trace a specific toxin in traditionally navigable water to a specific polluter miles away.

Souter responds that “a scientist would have to analyze the molecules and trace [them] to a specific discharge,” and Hopper agrees but sticks to his contention that no tributaries beyond major ones are covered by the CWA. He closes by saying that “every state in the nation has antipollution regulation.”

Then it’s Timothy Stoepker’s turn. He represents the Carabells and addresses both the hydrology of his clients’ property and the issue of state vs federal jurisdiction.

He points out, for example that a berm separated the Carabells’ wetland area from the adjoining drainage ditch, and argues this means there was no hydrological connection to downstream rivers.

Kennedy then asks a critical question.

“Was it also clear that, after the improvement, there would be no drainage?”

“After the improvement, there could be drainage,” answers Stoepker.

“Would that be a sufficient reason to deny a permit?” asks Kennedy later.

The conversation spins briefly into a discourse akin to the debate over the fate of Schrödinger’s Cat – if it’s not regulated until you “improve” it, and the improvement damages downstream waters, was it regulated all along? – before Scalia says, “It either is [regulated] or it isn’t. If it is, you need a permit; if it isn’t, you don’t need a permit.”

Stoepker then argues that Michigan authorities, in the form of the state court, checked all of the boxes needed for a permit, but that the Army Corps and EPA ignored its findings.

“The state [of Michigan]…found specifically that the issuance of the permit would be a better, effective method of dealing with pollution than not issuing the permit,” he says. “That was the specific finding made by the administrative law judge…after a two-week administrative trial where witnesses were cross examined and examined.”

The federal agencies, he says, “ignored those state powers given to its traditional waters and has said, ‘We’re going to ignore, number one, your claim of jurisdiction; and number two, we’re going to ignore your finding of no impact and completely disregard that.'”

“And the only reason it’s a water of the United States is that there are some puddles on this land, right?” says Scalia. “And if there were no puddles, it wouldn’t be a water of the United States. It would just be land of the United States.”

“That’s correct,” answers Stoepker, “because there’s some puddles on the land occasionally.”

Then it’s time for Solicitor General Paul Clement, arguing on behalf of the Army Corps and EPA.

Roberts pushes Clement to differentiate between a wetland with significant access to rivers and streams and one without one. Clement answers that a wetland has a significant access to any downstream waterbody, but he also emphasizes that protection doesn’t automatically mean prohibition.

“So, if you have a wetland, you would say a wetland with a hydrological connection to a tributary of navigable waters through one drop a year is a significant nexus to the waters of the United States?” asks Roberts. “One drop?”

“I would say, ‘All right, one drop? Fair enough,'” answers Clement. “But if there’s one drop, grant the permit.” (emphasis added)

Clement also counters Hopper’s contention that individual states will protect waters if the federal government doesn’t.

“I think it’s a bit much to ask a legislator in Wisconsin or Minnesota to stop local development in order to protect the water quality and flood control propensities of the Mississippi River in Mississippi,” he said, before taking his seat.

Story continues below

One Question, Three Answers

When the Supreme Court issued its 4-1-4 split decision four months later, on June 19, all sides claimed victory, but none were truly satisfied.

Four justices voted to affirm the lower court decisions, and five voted to overturn them, sending the cases back down to the lower court, but with new (and contradictory) guidance.

Specifically, four signed Scalia’s opinion, which said the Clean Water Act only applied to “relatively permanent, standing or continuously flowing” streams, oceans, rivers, and lakes, while one – Kennedy – reiterated the “significant nexus” rule  the court had formed in the 2001 case of  Solid Waste Agency of Northern Cook County (SWANCC) vs Army Corps of Engineers (for details, see Part Two of the series).

In Rapanos’s case, the lower court overturned his criminal conviction, but he agreed to pay a $1 million fine to the Environmental Protection Agency, without admitting guilt.

The question of what were and were not waters of the United States remains unanswered to this day.

Scalia’s Plurality Opinion

In his plurality opinion, Scalia ridiculed the way the definition of the word “navigable” expanded over the years, and he compared the Army Corps to an “enlightened despot” while lamenting the high cost of permitting (which Justice John Paul Stevens pointed out amounts “to only a small fraction of 1% of the $760 billion spent each year on private and public construction and development activity”).

Scalia then abruptly shifted from science, precedent, and cost to grammar – pointing out that the term in question wasn’t “water of the United States”, but instead “the waters of the United States”.

The difference?

“The use of the definite article (‘the’) and the plural number (‘waters’) show plainly that [the CWA] does not refer to water in general,” Scalia concluded, before referencing his 1954 edition of Webster’s New International Dictionary, which defined waters (with an “s”) as “water as found in ‘streams,’ ‘oceans,’ ‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming geographical features.’”

“On this definition, ‘the waters of the United States’ include only relatively permanent, standing or flowing bodies of water,” he concluded. “None of these terms encompasses transitory puddles or ephemeral flows of water.”

Kennedy’s Concurring Opinion

In his concurring opinion, Kennedy derided Scalia’s repeated dismissal of wetlands as “puddles”.

“Contrary to [Scalia’s] description,” he wrote, “wetlands are not simply moist patches of earth.”

He wrote at length about the role that wetlands play in filtering water and regulating floods, and he pointed out that Scalia’s requirement of permanence or semi-permanence “makes little practical sense in a statute concerned with downstream water quality.” Then he offered concrete examples to bolster his case (pun intended, for those of you who take the time to read the whole thing), and he even said that Scalia had cherry-picked his dictionary definition by ignoring a definition in the same edition that said “‘waters’ may mean ‘flood or inundation.’”

But while Scalia’s opinion was too narrow, he said, the dissent’s was too broad.

“While [Scalia] reads nonexistent requirements into the Act, [Stevens] reads a central requirement out — namely, the requirement that the word ‘navigable’ in ‘navigable waters’ be given some importance,” he wrote.

“When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction,” he continued. “Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis (emphasis added) when it seeks to regulate wetlands based on adjacency to non-navigable tributaries.”

Stevens’s Dissenting Opinion

In his dissent, Justice John Paul Stevens — who wrote the landmark 1984 opinion on how agencies like the Army Corps or EPA should implement statutes they’re charged with administering — offers the most complete backgrounder of the bunch. He fact-checks Scalia on hydrology, criticizes him for focusing on regulatory costs while ignoring the costs of degradation, and fleshes out both the Rapanos and Carabell cases.

From Chaos Comes…?

“Lawyers rarely agree on anything, but here’s an exception,” wrote Lawrence Hurley in the New York Times in 2011. “They all say the Supreme Court bungled Rapanos v. United States.”

The piece focuses on the chaotic early years after the decision, when one Alabama judge, confronted with the prospect of re-trying a case under the new “guidance”, figuratively throws up his hands in a colorful memorandum opinion.

“I write this opinion to explain why I will direct the Clerk to reassign this case to another judge for trial,” he wrote. “At least one of the reasons is that I am so perplexed by the way the law applicable to this case has developed that it would be inappropriate for me to try it again.”

The Environmental Protection Agency scrambled to create “post-Rapanos guidance“, but hundreds of disputes ended up in court as environmental NGOs sued for more aggressive protection and some industry groups sued for less. Of all those cases, only one court has deferred to Scalia’s opinion, with all others using Kennedy’s or both.

Still, with environmental NGOs, regulators, and even a growing number of real estate developers and other regulated entities clamoring for more clarity, the Obama administration in 2011 began the massive task of creating the definitive “Waters of the United States” (WOTUS) rule for identifying regulated waters.

Click here for part four: Writing the Rule