Rapanos in Action

Despite the U.S. Supreme Court’s 2006 Rapanos decision, what constitutes “waters of the U.S.” under the Clean Water Act (CWA) remains unclear. Because Rapanos failed to deliver a controlling majority opinion, lower courts are free to choose their favorite standard when it comes to deciding which wetlands are “waters of the U.S.” Some jurisdictions are choosing to apply Scalia’s test that deems only those wetlands with a “continuous surface connection” to a relatively permanent water (i.e., flows three at least three months of the year) to be CWA jurisdictional. Other jurisdictions, like the Ninth Circuit (which includes California), use Kennedy’s “significant nexus” test wherein a wetland is CWA jurisdictional if it has a more than insubstantial or speculative effect on the physical, chemical or biological integrity of a traditional navigable water.

Although the Corps and EPA issued Guidance in June 2007 for interpreting and applying the Rapanos decision, the Guidance has proved to be almost as elusive and difficult to interpret as the case. In California, property owners and pros-pective land developers should be prepared to devote substantial energy during any due diligence period considering the implications of Rapanos on potential jurisdiction of a property’s wet features and minor swales and tributaries.

Below is a discussion of federal court decisions construing Rapanos. Following analysis of those cases is a brief discussion of the agency Guidance.

Federal Caselaw
Three Ninth Circuit decisions since Rapanos have applied the “significant nexus” test. In Baykeeper v. Cargill (March 2007) the Court held that a pond’s adjacency to a navigable water was not enough to comprise a “significant nexus” for purposes of CWA jurisdiction. Cargill, Inc., maintained a number of waste containment ponds, one of which was adjacent to Mowry Slough, a navigable “water of the U.S.” The pond and slough were separated by a levee, which, under normal circumstances, prevented any hydrological connection. Occasionally, at high tide, the Slough would overtop the levee such that water would flow from the slough to the pond. The water level of the pond, however, was maintained at a level that prevented it from overtopping the levee and spilling slough-ward. The Court’s primary reason for finding the CWA inapplicable was that the pond was not a “wetland.” (Only wetlands may be CWA jurisdictional on the basis of adjacency). The Court did not stop there, however, but applied the “significant nexus” exercise demonstrating that even if the pond were a wetland eligible for regulation, it lacked a “significant nexus” to the Slough. Key to the Court’s reasoning was the absence of evidence to show that water from the pond ever entered the adjacent Slough. The Court deemed “speculative” an expert’s testimony that it was possible that given the right hydrological conditions water could flow from the pond to the Slough. Justice Kennedy’s concurrence in Rapanos eschews a speculative impact and thus the Ninth Circuit ruled against CWA jurisdiction.

On facts similar to Baykeeper, the Ninth Circuit in Northern California River Watch v. City of Healdsburg (August 2007) found a “significant nexus.” Again, the subject water was a wastewater containment pond separated from a traditional navigable water by a levee. To distinguish this case from Baykeeper, the Court first established that within and surrounding the pond were wetlands regulable under the CWA. Thereafter, the “significant nexus” inquiry comprised the heart of the Court’s discussion. With regard to the physical effect of the pond on the adjacent river, evidence was produced to show that the level of the pond and the adjacent Russian River rose and fell together, demonstrating a hydrological connection vis a vis a permeable underground aquifer between the river and pond whereby their waters mingled. A surface connection also existed when the river overflowed and its waters mingled with the similarly elevated pond. Addressing the chemical effect of the pond on the river, evidence showed that the pollutants discharged into the pond existed in higher concentrations in the Russian River immediately adjacent to the levee that separated the two waterbodies. Finally, a biological connection was demonstrated on the basis that the pond supported many of the same mammal, fish and bird species found in the adjacent river. On these facts the Court held that the pond had a “significant nexus” with the river such that the pond’s effects on the river’s physical, chemical and biological integrity were not insubstantial or speculative.

Also in August 2007, the Ninth Circuit decided U.S. v Moses wherein the Court concluded that the Rapanos decision, though fractured as to adjacent wetlands, was unanimous as to the jurisdiction of seasonal tributaries. In Moses, a property owner rearranged, during dry periods, tons of material altering the streambed of a seasonal river. The river was dry most of the year because it had been diverted upstream. Even so, the river flowed substantially during the rainy season. Quoting Headwaters, Inc. v. Talent Irrigation Dist (Ninth Cir. 2001) the Court reaffirmed that tributaries that flow intermittently are “waters of the United States.” Rapanos, the Ninth Circuit said, was not contrary. The Ninth Circuit noted that the Rapanos four-justice plurality conceded it would not necessarily exclude from CWA jurisdiction seasonal rivers, which contain continuous flow during some months, but no flow during dry months. The Rapanos dissent, said the Ninth Circuit, agreed. Turning to Kennedy’s concurring opinion the Ninth Circuit noted that he agreed with the dissent’s observation that an intermittent flow can constitute a stream and the Corps can reasonably interpret the CWA to cover such streams. Thus, the Ninth Circuit demonstrated that the Rapanos plurality, dissent and concurrence together endorsed the proposition that the Corps may regulate intermittent tributaries.

Rapanos Guidance
On June 5, 2007, the U.S. Environmental Protection Agency (EPA) and the Corps announced joint guidance “implementing … Rapanos and Carabell v. United States,” (Guidance). As noted above, while the intent of the Guidance is to clarify the Rapanos opinion, little clarification occurs. Instead, the Guidance offers a new vocabulary lacking in clear definitions, and leaves much at the Corps’ discretion.

The Guidance does clarify that the agencies (EPA and Corps) will continue to assert jurisdiction over “Traditional navigable waters,” (TNW) which appears to be a somewhat broader category than those waters over which the Corps had previously asserted jurisdiction as “navigable in fact.” In addition to TNWs, jurisdiction applies to wetlands adjacent to TNWs, “relatively permanent” non-navigable tributaries, described as having “continuous flow at least seasonally (e.g., typically three months). Nothing in the Guidance describes or limits application to atypical situations, or clarifies whether the source of flow must be natural rainfall or could be contracted irrigation flows. Finally, jurisdiction extends to wetlands “adjacent” to TNWs, and that “directly abut” relatively permanent non-navigable tributaries.

For the remaining waters, the agencies must show a “significant nexus” to a TNW, generally using factors discussed in the Ninth Circuit cases analyzed above. Although the Guidance does refer to two categories (swales and certain ditches constructed in upland) over which the “agencies generally will not assert jurisdiction,” the Guidance does not prohibit the assertion of jurisdiction in even those limited cases. As a result, the Corps retains broad discretion, and too few cases have completed review to allow an educated assessment of what tangible changes (if any) will take place in Corps California jurisdictional determinations.

S.D. Warren Co. v. Maine Board of Environmental Protection

May 15, 2006, the U.S. Supreme Court decided that water passing through a hydroelectric dam and returning to its original waterway is a “discharge” requiring State approval under § 401 of the federal Clean Water Act (“CWA”). Because the CWA does not define “discharge” the High Court refused to narrow the term by requiring the addition of a pollutant, but instead called on Webster’s New International Dictionary to define discharge broadly as “flowing or issuing out.” The Court affirmed the lower court’s holding that state approval is required but on different grounds. The lower court viewed the temporary exercise of private control over U.S. waters (diversion through the dam) as a means of privatizing water so that when it is reintroduced into the natural watercourse it is an “addition” comprising a discharge for purposes of § 401. Not so, said the High Court. The waters are not a discharge because they are denationalized by private control and added to waters of the U.S., they are a discharge simply because the water is “flowing or issuing out.” Despite the Court’s insistence that a § 401 discharge does not require addition of a pollutant, the Court noted that the downstream aquatic habitat is changed by the presence of the dam and the chemical structure of water that passes through dam turbines is modified. Specifically, river levels may drop, reducing habitat and passage for fish and eels and nitrogen dissolves in the water and can be lethal to fish. The Court concluded “Changes in the river like these fall within a State’s legitimate legislative business, and the Clean Water Act provides for a system that respects the States’ concerns.”

The State of California currently regulates water quality by requiring approval for discharges of waste through the Porter Cologne Water Quality Control Act. The S.D. Warren decision gives states broader authority to regulate existing and new discharges that have no associated polluting effect. For instance, an existing in-stream structure (e.g., culvert or lined channel) may be characterized as something from which water flows and is thus now a discharge. Similarly, a passive impoundment structure that does not intrude into the normal flow of a creek may still result in a “discharge” characterization.

If you are contemplating a land development project that requires hydrologic features and have questions about how this decision may affect your project, call B. Demar Hooper, a Professional Corporation for answers.