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Federal Circuit Courts Split on Application of Supreme Court’s Rapanos Decision

December 6, 2006

The Roberts Court’s first significant environmental decision — a split 4:4:1 plurality in Rapanos v. United States[1] addressing the scope of EPA’s authority to regulate wetlands — has lower courts equally divided over how to interpret it.  Three Circuit Courts have addressed the issue. The Seventh and Ninth Circuits have concluded that the “significant nexus” analysis in Justice Kennedy’s Rapanos concurrence provides the controlling test for determining the jurisdictional boundary of the United States’ authority over water bodies and wetlands.[2] In contrast, the First Circuit recently departed from the other Circuit’s approach and held that the United States could assert jurisdiction over alleged Clean Water Act (CWA) violations by applying either the “significant nexus” test or by meeting the standard the plurality set forth in Rapanos.[3] These decisions identify two different views of the Court’s holding and illustrate that it will take further Supreme Court action to resolve the federal jurisdictional issues remaining after Rapanos

The Rapanos Decision

In Rapanos, a divided Supreme Court issued a 4:4:1 plurality decision, remanding to the Sixth Circuit Court of Appeals the issue of whether the U.S. Army Corps of Engineers (“Corps”) exceeded its statutory authority under the CWA by requiring property owners to acquire permits before dredging and filling certain wetlands.[4] The Court advanced two different tests for determining whether wetlands are “waters of the United States” and therefore subject to federal jurisdiction under the CWA.

Justice Scalia’s plurality decision narrowly construed the phrase “waters of the United States” to include only “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’”[5] Under Justice Scalia’s test, federal regulatory jurisdiction would only apply if there is a continuous surface connection between a wetland and that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.[6] Justice Kennedy rejected Justice Scalia’s test in his concurrence, and advanced a test that would require the Corps to establish a “significant nexus” between wetlands and navigable waters on a case-by-case basis.[7] Under Justice Kennedy’s test, “wetlands possess the requisite nexus, and thus come within the phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”[8] Justice Stevens authored a dissenting opinion, joined by three other Justices, which instructed the lower court to find jurisdiction if the United States proved jurisdiction under either test.[9] For further analysis of the Rapanos decision, see Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided.

The Healdsburg and Gerke Decisions

In Healdsburg, the Ninth Circuit held that the City of Healdsburg, California is required to obtain a National Pollution Discharge Elimination System (NPDES) permit to discharge sewage into a rock quarry pit filled with water from an aquifer adjacent to the Russian River.[10] The Ninth Circuit began its analysis by considering whether the pit, known as Basalt Pond, and its surroundings are “wetlands adjacent to waters” within the meaning of the Army Corps of Engineers’ CWA regulations defining “waters of the United States.” Because Basalt Pond contains wetlands, the Court quickly found that the only remaining question is whether those wetlands constitute “waters of the United States” subject to the CWA. On this point, the Court examined the Supreme Court’s decisions in Riverside Bayview, SWANNC, and Rapanos and held, with limited analysis, that Justice Kennedy’s opinion in Rapanos provides the controlling rule of law and that to qualify as a navigable water under the CWA a body of water itself need not be continually flowing but that there must be a “significant nexus” to a waterway that is in fact navigable.[11]

Applying the significant nexus test to the trial court’s findings of fact in Healdsburg, the Ninth Circuit concluded that Basalt Pond, and its wetlands possess a “significant nexus” to waters that are navigable in fact and, therefore, trigger the CWA because the Pond waters seep directly into the Russian River, an undisputedly navigable water.[12] The Court then emphasized that Justice Kennedy made clear that Riverside Bayview and SWANCC establish the framework for the “navigable waters” inquiry and that Rapanos did not explicitly or implicitly overrule either case. Within this framework, the Ninth Circuit proceeded to apply the “significant nexus” test according to Justice Kennedy’s opinion. Justice Kennedy explained that a “mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.”[13] Rather, the “required nexus must be assessed in terms of the statute’s goals and purposes,” which are to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[14]

Applying these principles, the Ninth Circuit explained that the critical fact was that the Pond and Russian River are separated only by a porous man-made levee so that water from the Pond seeps directly into the adjacent River. The Court further found that there is an actual surface connection between Basalt Pond and the Russian River when the River overflows that levee and the two bodies of water commingle. Therefore, the Ninth Circuit affirmed the District Court’s findings of fact, concluded that the adjacent wetland of Basalt Pond has a significant nexus to the Russian River, and held that the City’s wastewater discharges into Basalt Pond without a permit violate the CWA. For further analysis of the Healdsburg decision, see Ninth Circuit, In First Case Applying Supreme Court’s Rapanos Decision, Holds NPDES Permit Required for Sewage Discharge to Excavated Pit.

In Gerke, the Seventh Circuit, like the Ninth Circuit, held that Justice Kennedy’s concurrence provides the legal standard for CWA wetlands jurisdiction following Rapanos.  The Court in Gerke decided that Kennedy’s ground for reversing in Rapanos was “narrower (so far as reining in federal authority is concerned) than the plurality’s in most cases.”[15] The Court therefore remanded the case for further proceedings as necessary to determine whether the Corps had jurisdiction over the wetland in question under Justice Kennedy’s “significant nexus” test.

The Johnson Decision

Departing from the Ninth and Seventh Circuits, the First Circuit ruled last month in United States v. Johnson that the federal government can establish federal CWA jurisdiction if it can meet either of two standards set forth in the Supreme Court’s divided Rapanos decision. The Johnson case arose after the United States brought action against a group of Massachusetts cranberry farmers claiming that they had violated the CWA by discharging dredged and fill material into wetlands at three sites on their property without a permit.[16] The sites were physically removed from navigable waters (i.e. the Weweantic River), but were “connected” to the Weweantic River via a series of non-navigable intermediary waters.[17]

The First Circuit decided to follow the approach that Justice Stevens advocated in his Rapanos dissent and held that the United States could assert jurisdiction over alleged CWA violations by applying either the “significant nexus” test or by meeting the standard the plurality set forth in Rapanos.[18] In deciding to follow Justice Stevens’ approach, the First Circuit examined the Seventh and Ninth Circuits’ decisions and expressly departed from those decisions. The Court explained its departure by first noting the Seventh and Ninth Circuits’ reliance on Marks v. United States and considered the extent to which the Supreme Court’s decision in Marks assisted its determination of the controlling legal standard.  In Marks, the Supreme Court found that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” According to the First Circuit, “Marks is workable-one opinion can be meaningfully regarded as ‘narrower’ than another-only when one opinion is a logical subset of other, broader opinions.” [19] Since “[t]he cases in which Justice Kennedy would limit federal jurisdiction are not a subset of the cases in which the plurality would limit jurisdiction,”[20] the Court determined that the Marks formula does not “translate easily” to the opinions in Rapanos.

Following this assessment, the First Circuit concluded that finding jurisdiction where either test is satisfied ensures that lower courts would find jurisdiction in all cases where a majority of the Court would support such a finding. That is, “[i]f Justice Kennedy’s test is satisfied, then at least Justice Kennedy plus the four dissenters would support jurisdiction. If the plurality’s test is satisfied, then at least the four plurality members plus the four dissenters would support jurisdiction.”[21] The First Circuit found that this approach was particularly sound because the Supreme Court, since Marks, has “indicated that whenever a decision is fragmented such that no single opinion has the support of five Justices, lower courts should examine the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced.”[22] After “opting for more flexibility determining the controlling opinion,” the First Circuit vacated its earlier decision and remanded for further proceedings. [23]


“Legal experts who are closely monitoring post-Rapanos rulings said the Johnson case does little to clear up the confusion about the Supreme Court ruling.” [24] EPA is expected to issue regulatory guidance to implement the Rapanos decision later this month. There are, however, likely to be questions about the deference the courts should give to such guidance. It is clear for now that, as Justice Stevens predicted, given the Supreme Court’s fractured decision in Rapanos many more courts will likely be called upon to decide cases involving interpretations of federal Clean Water Act jurisdiction.

Contact Jeff Kray for further information.

[1] Rapanos v. United States, 126 S. Ct. 2208 (2006).

[2] United States v. Gerke, 464 F.3d 723 (7th Cir. 2006) and Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006).

[3] United States v. Johnson, 467 F.3d 56 (1st Cir. 2006).

[4] Rapanos, 126 S. Ct. at 2208.

[5] Id. at 2225.

[6] Id. at 2227.

[7] Id. at 2249.

[8] Id. at 2248.

[9] Id. at 2265.

[10] City of Healdsburg 457 F.3d at 1030-1031.

[11] Id. at 1029-1031.

[12] Id.

[13] Rapanos, 126 S. Ct. at 2250-2251.

[14] Id. at 2248 (internal quotations and citations omitted).

[15] Gerke, 464 F.3d at 724-725.

[16] See Johnson, 467 F.3d at 58; 33 U.S.C. § 1311 and § 1352.

[17] See Johnson, 437 F.3d 157, 160 (1st Cir. 2006).

[18] The First Circuit affirmed the trial court’s judgment that CWA jurisdiction extended to the farmers’ cranberry bogs, but advanced different rationales than the trial court did for finding jurisdiction. The Johnsons subsequently filed a petition for rehearing en banc noting the Supreme Court’s then-pending decision in Rapanos. The First Circuit held that petition in abeyance pending the Supreme Court’s decision. Following the Supreme Court’s decision, the Johnsons filed a supplemental petition for rehearing en banc, arguing that, under Rapanos, the Corps lacked jurisdiction to regulate the wetlands in question. The government opposed the petition for en banc review, and asked the court to vacate the decision and to remand to the district court for application of the Rapanos standards. In substantial part, the government argued that, on remand, it should be allowed to establish CWA jurisdiction under either of the two tests for wetlands jurisdiction advanced in Rapanos.

[19] See Id. at 63-64 (citing King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).

See Id. at 64.

See Id. at 64.

See Id. at 65 (citing e.g., League of United Latin Am. Citizens v. Perry, 126 S.Ct. 2594, 2607 (2006)).

[23] Inside EPA, Ruling Backs EPA, Corps Bid for Dual Test for Overseeing Wetlands (November 2, 2006) (subscription required).

[24] Lucy Kafanov, Ruling in Mass. Case fails to clarify Rapanos, legal scholars say, Greenwire

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