In Rapanos v. United States, the Supreme Court addressed the issue of federal wetlands jurisdiction under the Clean Water Act. The Court's fractionalized opinion left lower courts searching for the appropriate analysis to determine Army Corps of Engineers jurisdiction over wetlands. In addition, the opinion left unclear the proper role that science should play in addressing the jurisdictional inquiry. Since Rapanos is a complex decision, and because South Dakota has numerous wetland areas that intersect with ranching, farming, and development, it is important for the South Dakota legal community to stay current with new developments in wetlands jurisdiction. One such new development is the 2011 Corps and Environmental Protection Agency Joint "Draft Guidance on Identifying Waters Protected by the Clean Water Act." The Draft Guidance and federal appellate court cases decided under Rapanos indicate that science plays a crucial role in assessing wetlands jurisdiction. Practitioners must be aware that evidence of scientific parameters, or lack thereof can have a major effect on the outcome of a given case. Clever litigators can use the Draft Guidance as a manual to discern appropriate types of evidence that can be used in determining jurisdictional claims under the Rapanos tests.
In the same manner that the antagonist in a superhero film produces mayhem as the plot of the movie unfolds, so too has the United States Supreme Court's decision in Rapanos v. United States (1) created chaos in federal wetlands jurisdiction cases across the country. (2) While the storyline of such a film comes to denouement and the audience traipses away, thrilling at the thought of the villain defeated, such resolution in the Rapanos saga is not possible--the plot continues to unfold as the legal community attempts to parse through the rubble. (3)
In Rapanos, three disjunct (4) portions of the opinion attempted to define the appropriate test to determine whether the Army Corps of Engineers ("Corps") should have jurisdiction over wetlands found next to non-navigable tributaries of navigable waters under the Clean Water Act ("CWA"). (5) The plurality and concurring portions of the opinion directed that the case be remanded, but offered different tests to analyze federal jurisdiction. (6) First, the plurality, written by Justice Scalia, determined that there must be a "surface connection" between the wetland at issue and the navigable water for the Corps to claim jurisdiction. (7) The plurality downplayed the role that science and ecology should play in determining Corps jurisdiction over wetlands. (8) Alternatively, Justice Kennedy's concurrence posited that the appropriate test should be whether a "significant nexus" exists between the wetland in question and the navigable water; if so, the Corps could claim jurisdiction. (9) In contrast to the plurality, Kennedy's concurrence acknowledged scientific factors as an important part of the CWA, (10) and verbalized those factors as part of the significant nexus test. (11) Finally, the dissent, authored by Justice Stevens, argued that the lower courts' decisions to grant jurisdiction to the Corps should be affirmed. (12) Justice Stevens asserted that lower courts should make use of either the plurality or the Kennedy test to determine jurisdiction in future cases. (13)
Under this framework, federal appellate courts have largely been left to their own devices to puzzle out how the jurisdictional inquiry should proceed, resulting in inconsistency among court decisions. (14) For example, federal appellate decisions have split with regard to which test should be used to determine Corps jurisdiction over wetlands. (15) An additional misunderstanding has emerged with regard to the proper role of science in the jurisdictional analysis--while it is apparent that federal appellate courts expect that scientific evidence be used in proving jurisdiction under Rapanos, many cases demonstrate that litigators simply have not cued into this expectation. (16)
Recently, in an attempt to mitigate this confusion, the Corps and the Environmental Protection Agency ("EPA") jointly released the 2011 Draft Guidance on Identifying Waters Protected by the Clean Water Act ("Draft Guidance"). (17) The Draft Guidance is meant to provide direction for courts and Corps employees in finding and applying the correct Rapanos test to a wetland over which federal jurisdiction is asserted. (18) Although not finalized as of this writing, the Draft Guidance offers insight into wetland jurisdiction determinations according to the Corps and EPA's understanding of the CWA and case law interpreting the CWA. (19) When offered in juxtaposition with case law decided since Rapanos, the Draft Guidance is revealed to be a valuable resource for practitioners confronted with issues regarding federal wetlands jurisdiction. (20)
The federal wetlands jurisdictional inquiry was addressed by the United States Court of Appeals for the Eighth Circuit in United States v. Bailey. (21) Practitioners in South Dakota are prudent to stay abreast of these changes in federal wetlands jurisdiction issues because the state contains wetland areas which have historically conflicted with agricultural (22) and developmental interests. (23) The consequences for failing to abide by the CWA can be substantial. (24) For these reasons, a basic understanding of the Rapanos decision and its progeny is helpful for practitioners in South Dakota and the Eighth Circuit to successfully prepare for litigation involving federal wetlands jurisdiction. (25)
To clarify these ideas, this comment first reviews the Rapanos decision, federal appellate court cases decided under Rapanos, and the background of the Bailey decision from the Eighth Circuit. (26) Second, this comment examines the Draft Guidance to provide readers with familiarity of the two Rapanos tests as interpreted by the EPA and the Corps. (27) Third, this comment offers an analysis of the application and requirements of the Rapanos tests by providing a comparison of the Draft Guidance with the Bailey decision and other federal appellate decisions. (28) Specifically, through a comparison of the Draft Guidance and the Bailey analysis, this comment argues that the Draft Guidance will serve a valuable function in clarifying the tests and the appropriate application of those tests. (29) Next, through juxtaposition of the Draft Guidance and federal appellate decisions, this comment argues that scientific evidence is so crucial to the wetlands jurisdiction analysis that the presence of scientific parameters, or lack thereof, can have a major effect on the outcome of a given case. (30) Finally, this comment explores federal appellate decisions and the Draft Guidance to offer practitioners insight as to the appropriate types of evidence used to prove scientific parameters. (31) Ultimately, this comment aims to demonstrate that the Draft Guidance provides practitioners with an opportunity for a more complete understanding of the influence of science in the jurisdictional inquiry. (32)
RAPANOS V. UNITED STATES
The Rapanos opinion addressed two consolidated cases from the United States Court of Appeals for the Sixth Circuit. (33) In the first case, John Rapanos wanted to develop five parcels of land. (34) Rapanos consulted with the Michigan Department of Environmental Quality ("MDEQ"), the state environmental regulatory agency, which informed him that the parcels most likely contained wetlands. (35) Rapanos hired an independent consultant to establish how much of the land would actually qualify as wetlands. (36) When the consultant returned with a determination that portions of the land would qualify as wetlands, Rapanos "threatened to 'destroy' the consultant" if the consultant did not dispose of his findings. (37) Rapanos then proceeded to fill the wetland areas on the sites without a permit, all the while ignoring the Corps' orders to cease and desist. (38) The Corps asserted jurisdiction under the CWA and brought a civil enforcement action against Rapanos, alleging that he discharged fill into wetlands that fell under the agency's jurisdiction. (39) The United States District Court for the Eastern District of Michigan found that three of the five areas of land qualified as wetlands and ruled in favor of the Corps. (40) The Sixth Circuit unanimously affirmed the district court's decision. (41)
In the second case, the Carabells intended to develop a condominium on their property, the construction of which required filling 15.9 acres of forested wetland. (42) The Carabells applied for a permit with the MDEQ, which was initially denied. (43) The Carabells appealed through the state administrative process and were granted a permit. (44) The EPA and Corps subsequently asserted jurisdiction over the parcel under the CWA and denied the Carabells a permit. (45) The Carabells filed an appeal of the Corps' denial in the United States District Court for the Eastern District of Michigan, which granted summary judgment in favor of the Corps. (46) The Sixth Circuit affirmed the district court's ruling. (47)
The question presented to the United States Supreme Court in both of these cases was whether the Corps had jurisdiction over the wetlands in question, as determined by interpretation of the phrases "navigable waters" and "the waters of the United States" as found in the CWA. (48) In light of previous interpretation of those same phrases in United States v. Riverside Bayview Homes, Inc. (49) ("Riverside Bayview") and Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (50) ("SWANCC"), the United States Supreme Court was faced with determining how far Corps jurisdiction extends over wetlands adjacent to non-navigable tributaries of navigable waters under the CWA. (51)
Justice Scalia's Plurality Opinion
Writing for the plurality, Justice...