Victory for Atlantic Legal as Supreme Court Rules in Wetlands Case

In December 2005, Atlantic Legal Foundation, partnering with New England Legal Foundation, filed an amicus brief in the United States Supreme Court in Rapanos v. United States, a case which may clarify whether the U.S. Army Corps of Engineers (the "Corps") has the authority under the Clean Water Act ("CWA") to regulate the dredging and filling of inland wetlands.

On June 19, 2006 a fractured Court (there was no majority opinion, the case being decided by a plurality opinion byJustice Scalia, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito) rejected the Governments hydrologic connection theory, and heldthat:

(1)The phrase the waters of the United States includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, [and] lakes, and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.The Corps expansive interpretation of that phrase is thus not based on a permissible construction of the statute.

(a) While the meaning of navigable waters in the CWA is broader than the traditional definition found in earlier cases, the CWA authorizes federal jurisdiction only over waters.The use of the definite article the and the plural number waters show plainly that the Act does not refer to water in general, but more narrowly to water as found in streams, oceans, rivers, and lakes and those terms all connote relatively permanent bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows.

(b) The Acts use of the traditional phrase navigable waters confirms that the CWA confers jurisdiction only over relatively permanent bodies of water.Traditionally, such waters included only discrete bodies of water, and the term still carries some of its original substance.The CWA itself categorizes the channels and conduits that typically carry intermittent flows of water separately from navigable waters, including them in the definition of point sources.Moreover, only the narrower definition of waters is consistent with CWAs stated policy to recognize, preserve, and protect the primary responsibilities and rights of the States to plan the development and use of land and water resources .In addition, the waters of the United States hardly qualifies as the clear and manifest statement from Congress which would be needed to authorize intrusion into such an area of traditional state authority as land-use regulation and to authorize federal action that stretches the limits of Congresss commerce power.

(2) A wetland may not be considered adjacent to remote waters of the United States based on a mere hydrologic connection and only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are covered by the Act.Establishing coverage of the Rapanos and Carabell sites requires finding that the adjacent channel contains a relatively permanent water of the United States, and that each wetland has a continuous surface connection to that water, making it difficult to determine where the water ends and the wetland begins.

Justice Kennedy agreed that the Sixth Circuit erred and that the hydrologic connection theory goes too far, so he joined the plurality for reversal, but he would have the Sixth Circuit apply all of the factors in two leading earlier cases.His preferred test would focus on whether the given wetlands have a significant nexus to waters that are, or reasonably could be, made navigable.(Some commentators, e.g. Linda Greenhouse in the June 20, 2006 edition of TheNew York Times, believe that the decision is a victory for environmentalists, emphasizing Justice Kennedys concurrence. We disagree, although to be sure the way in which the Rapanos decision is applied by the lower courts is not predictable.)

Justice Stevens wrote the main dissent, which all the remaining justices joined. Stevenss dissent argues that the Corpss interpretation should be given deference.Breyer filed an additional brief view as well.

Both Rapanos and Carabell were reversed and remanded.