The U. S. Supreme Court took a step toward more clearly defining the U.S. Army Corps of Engineers' jurisdictional boundaries over "waters of the United States" recently in Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers when it confirmed that the Clean Water Act of 1972 does not apply to all wetlands, ditches, and other small bodies of water, however remote and intermittent they may be.
By a 5-4 vote, the Court agreed that regulators may have misinterpreted the CWA when they refused to allow two Michigan property owners to build a shopping mall and condos on wetlands they own. Yet they failed to produce a majority opinion on the scope of the CWA, and sent the two cases back to the circuit courts for further consideration on whether ditches and drains near remote wetlands qualify as waterways, thus making them subject to protection under the act.
The Associated General Contractors of America had urged the Court to clarify that the Corps does not have jurisdiction over construction activities in or adjacent to remote wetlands and manmade drainages that have little or no connection with "waters of the United States."
Previously, the Corps held jurisdiction over any wetland connected to a continuously flowing body of water, and contractors were required to go through a lengthy process to obtain building permits for those areas.
"Now that the Supreme Court has established the outer boundaries of the agency's authority, the Associated General Contractors of America believes it's time for the Corps to craft reasonable and reliable guidelines on how it intends to work within those boundaries," said Leah Pilconis, environmental attorney for the AGC.
Four justices voted with the majority to limit the Corps' jurisdiction over "waters of the United States" to relatively permanent, standing, or continuously flowing bodies of water usually defined as streams, oceans, rivers, and lakes. For wetlands to be subject to jurisdiction by the Corps under this opinion, they would need a continuous surface connection with a continuously flowing body of water.
Justice Anthony M. Kennedy provided the fifth and decisive vote, agreeing with the majority opinion but adding that the Corps cannot regulate remote wetlands connected to ordinarily dry channels without first establishing a "significant nexus" between the wetlands and navigable waters. He said the Corps should hold jurisdiction over wetlands if they significantly affect the chemical, physical, and biological integrity of navigable waters.
Until regulatory agencies define "significant nexus" in working terms, Pilconis says she expects permit applications to be evaluated on a case-by-case basis, a process she termed "unbearable." The regulated community needs "fair notice of what boundaries are jurisdictional," she said.
The Corps is currently working with the Justice Department and the Environmental Protection Agency to determine what the Court's decision means for debatable areas of jurisdiction, and to work toward establishing guidance of some kind for the regulated community, says Mark Sudol, chief of the Corps' regulatory section.
Environmentalists fear that deregulation could spur harmful development if permits are no longer needed for building on or near remote wetlands. "We'd be losing a lot if we took the [Corps'] jurisdiction away," said Karla Raettig, attorney for the Environmental Integrity Project, an environmental watchdog group in Washington, D.C. "Wetlands are crucially important for water quality and habitats."