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Post-Rapanos Rulings Continue To Bedevil Developers, Agencies, Courts and Congress

By Brad Marten
April 28, 2010

It has been four years since the 2006 decision in United States v. Rapanos,[1] a case in which a divided Supreme Court, in a 4:4:1 opinion, determined – sort of – the scope of federal jurisdiction over wetlands and other “intermittent” water bodies under the Clean Water Act (CWA).[2] While the subject of federal jurisdiction over seasonal waters might seem a bit boring to some, it is gripping if you happen to be one of the thousands of people trying to develop any of the millions of acres impacted by such waters – from farmland to grasslands to estuaries. The specific issue in Rapanos was whether the Corps of Engineers (“Corps”) exceeded its statutory authority under CWA Section 404 by requiring property owners to acquire permits before disposing dredged material into or filling wetlands.[3] The wetlands at issue in Rapanos were adjacent to ditches and man-made drains that eventually emptied into navigable waters. Justice Scalia’s plurality decision narrowly interpreted “waters of the United States” to include “only relatively permanent, standing or flowing bodies of water.”[4] Justice Anthony Kennedy’s concurrence, in contrast, specifically rejected the plurality opinion, and instead held that the Corps is required to establish a “significant nexus” between wetlands and navigable waters on a case-by-case basis to establish CWA jurisdiction.[5] The “significant nexus” standard announced by Justice Kennedy has come to be the one generally applied in subsequent proceedings.[6]

In the four years gone by since the Rapanos decision, private developers, federal agencies and courts have grappled with applying Justice Kennedy’s “significant nexus” standard in a variety of different factual settings. Today’s Newsletter reports on two more such cases – one involving former farmlands converted to non-agricultural uses; the other involving upland ditches. Previously, we have reported in this Newsletter on twelve different cases and/or agency interpretations of Rapanos.[7]The common theme among them is that, without Congressional action or another ruling by the Supreme Court, anyone involved in development of land having wetlands or intermittent waters – millions of acres in this country – should probably seek agency review of their proposal before undertaking development.

This likely will remain the case, at least for some time. There are no cases pending before the Supreme Court this term interpreting Rapanos. Legislation has been introduced in the House[8] and Senate[9] to clarify the scope of CWA jurisdiction, but it is unlikely to receive much attention in the near-term given Congress’s already full plate of financial reform, energy, immigration and other issues.

If you wish to find out more about this issue as it relates to a particular development, please contact Brad Marten, Jeff Kray, or any other member of Marten Law’s Water Quality practice group.

[1] 547 U.S. 715, 126 S. Ct. 2208 (2006).

[2] 33 U.S.C. § 1344.

[3] Rapanos, 547 U.S. at 729.

[4] Rapanos, 547 U.S. at 732.

[5] Rapanos, 547 U.S. at 767-778 (Kennedy, J., concurring).

[6] Rapanos, 547 U.S. at 781-83 (Kennedy, J., concurring).

[7] See the following Marten Law articles:

[8] H.R.5088.

[9] S.787.

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