SC Lawyer, September 2006, #4. Navigation of troubled waters: wetland regulation in South Carolina after Rapanos.

• Author: By Mary D. Shahid and R. Cody Lenhardt Jr.

South Carolina Lawyer

2006.

SC Lawyer, September 2006, #4.

Navigation of troubled waters: wetland regulation in South Carolina after Rapanos

South Carolina LawyerSeptember 2006Navigation of troubled waters: wetland regulation in South Carolina after RapanosBy Mary D. Shahid and R. Cody Lenhardt Jr.The U.S. Supreme Court has issued its much anticipated opinion in the consolidated cases of Rapanos et ux., et al. v. United States and June Carabell et al., v. United States Army Corps of Engineers et al. These cases arise out of actions taken by the U.S. Army Corps of Engineers (the Corps) in Michigan. In both instances the Corps determined that certain wetland areas were jurisdictional waters of the United States based on connections to traditional navigable waters by way of man-made drainage features. The Supreme Court reversed the decisions of the lower courts in both cases, which had upheld the Corps' assertion of jurisdiction.

The regulated community should find comfort in the Court's opinion, authored by Justice Scalia, the "tone" of which resonated with landowners, consultants, engineers and lawyers who know first hand the frustrations associated with the "404" permitting process (Section 404 of the Federal Water Pollution Prevention and Control Act, 33 USCS § 1344). Justices Scalia, Thomas and Alito, with concurrence from Chief Justice Roberts, characterized the Corps as an "enlightened despot" in the exercise of its permitting discretion. In his abbreviated but pointed concurrence, Chief Justice Roberts chided the Corps for its failure to respond to the Court's previous decision related to the agency's permitting jurisdiction, Solid Waste Agency of Northern Cook County v. U. S. Army Corps of Engineers, (SWANCC) 531 U. S. 159 (2001). "Rather than refining its view of its authority in light of our decision in SWANCC and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency."

A majority of Justices were in agreement to reverse and remand the decisions of the lower courts that had upheld the Corps' jurisdictional and permitting determinations, but a division exists between the plurality (Roberts, Scalia, Thomas and Alito) and the fifth vote, Justice Kennedy. While practitioners in this field will strive to find common ground between the jurisdictional tests articulated by the plurality and the standard described by Kennedy, there can be no denying the Supreme Court truncated the sweeping permitting jurisdiction that the Corps had granted itself. The result of the decision may be a widening of the regulatory gap opened by SWANCC and increased pressure in South Carolina for a clarification and verification of the state's authority to fill the gap with state regulation.

Background

In SWANCC, the Corps asserted permitting jurisdiction over a solid waste disposal site proposed for use by several municipalities in northern Illinois. The disposal site was an abandoned sand and gravel pit, which had evolved, as described by the Court, into "seasonal ponds." These ponds, while isolated from traditional navigable waters, provided habitat for migratory birds. In order to assert jurisdiction over the ponds, the Corps applied a standard, known as "the Migratory Bird Rule," through which the Corps established a nexus to interstate commerce, which rendered the isolated, intrastate ponds "waters of the United States." (33 USCS § 1344 authorizes Department of Army review of discharges into "navigable waters." 33 USCS § 1362(7) defines "navigable waters" as "waters of the United States, including the territorial seas.") The Court held that the Migratory Bird Rule was an unauthorized expansion of the Corps' jurisdiction. The Court further held that the word "navigable" in the phrase "navigable waters" must be given some import in interpreting the Corps' jurisdiction and that isolated, intrastate wetlands are not typically "navigable waters."

While the Corps narrowly interpreted SWANCC as a repudiation of the Migratory Bird Rule, SWANCC in fact provided a much fuller analysis of the reach of the Corps' jurisdiction. The Court in SWANCC found consistency betweens its conclusions there and its earlier opinion in...