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The Muddy Waters of Rapanos v. U.S. Army Corps of Engineers
by Erin Coe, Feeling The Pain From A Divided Supreme Court Ruling, from Law 360
Wetland permitting has been a point of contention in the lower courts for the
last several decades. It seems like every few years a district court hears a
case from a disgruntled land developer appealing a civil suit brought against
them by the Environmental Protection Agency (EPA). The frequency of these cases
have become more apparent ever since the U.S. Supreme Court justices failed to
reach consensus on clarifying when wetlands are considered “waters of the United
States” under the Clean Water Act (CWA).

The confusion began in the third most important case in US environmental law
history, a 2006 case, Rapanos v. U.S. Army Corps of Engineers, when a rare
plurality 4-1-4 decision generated several opinions, none of which garnered
enough votes to produce a majority opinion, leaving the lower courts and the
U.S. EPA to randomly decide for themselves which opinion to follow — and
everyone else to grapple with the fallout.


A Splintered Decision
 
When the justices fail to speak with one voice, where does that leave the law?
The Supreme Court's so-called Marks rule holds that when there's no clear
majority, lower courts should go with the position taken by the justices who
concurred in the judgment "on the narrowest grounds." The problem is that's not
always easy to figure out.
In Rapanos, Justice Antonin Scalia, writing for the plurality, said regulatory
authority under the Clean Water Act should extend only to "relatively permanent,
standing or continuously flowing bodies of water" connected to traditional
navigable waters and to "wetlands with a continuous surface connection to" those
types of waters. However, Justice Anthony Kennedy issued a solo concurrence
articulating a less restrictive view of federal authority, stating that CWA
coverage depends on whether the water has a "significant nexus" with traditional
navigable waters. The federal appellate courts have since split on which opinion
to apply.
 
At the time, Chief Justice Roberts bemoaned the lack of a majority opinion in a
separate concurrence, saying lower courts and regulated entities "will now have
to feel their way on a case-by-case basis." The federal appellate courts have
been divided over which opinion in the Rapanos case controls. Four circuits —
the Fourth, Seventh, Ninth and Eleventh — have relied on Justice Kennedy's
concurrence, while four other circuits — the First, Third, Sixth and Eighth —
have ruled that the government may provide jurisdiction under either the
plurality opinion or the concurrence, according to Anthony Francois, a senior
attorney at the Pacific Legal Foundation, the group that represented landowner
John Rapanos.

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Administrative Limbo
 
The lack of concrete guidance has led to administrations interpreting the law
how they see fit, complicating the issue. The EPA under the Obama administration
based its controversial 2015 water regulation on Justice Kennedy's opinion,
taking a wider view of the CWA. A rule, which sought to limit water pollution
based on the "significant nexus" test, was challenged in litigation, and a few
courts issued injunctions preventing its implementation nationwide. As a result,
it took effect in 22 states, while nearly all the remaining states have followed
1986 guidelines.
 
While the agency under the Trump administration has tried to shift its
allegiance to the plurality opinion limiting federal authority. In September
2019 the EPA announced the repeal of the 2015 rule, a move that took effect that
November. Dave Ross, the EPA's water chief, remarked at a Texas conference in
August of 2019 that the most challenging environmental law question of his time
has been how to define "waters of the United States" under the Clean Water Act.

Source: Law & the Environment, Foley Hoag LLP

Trickle-Down Effect
 
Because circuit courts disagree over which Rapanos opinion to follow and some
circuits have yet to weigh in, litigation can be costly for landowners,
especially when it comes to experts addressing the significant nexus test,
according to Francois. In civil enforcement suits, each side can spend hundreds
of thousands to potentially millions of dollars, he said.

The fallout has been a source of concern not just for new developers, but also
for longtime ones, such as agencies that manage reservoirs and flood control
facilities, over how changes to the interpretation of the law will affect
existing infrastructure. "No one wants to see the Clean Water Act gutted. Water
agencies want it to be interpreted in a way that makes operating of existing
infrastructure manageable," said Andre Monette, a Best Best & Krieger LLP
partner who represents California water agencies. "Everybody is in a waiting
period."
 
The cost and impact of a plurality decision is consequential. If this issue
resurfaces before the Supreme Court, because of the new make up, there could be
a resolution. What that resolution is, we will have to wait and see. But what we
do know is Rapanos v. U.S. foreshadows the outcome of future plurality decisions
made by the Supreme Court, years of regulatory changes that sway back and forth,
leading to inconsistencies and a continued fight for clarity. 

Most agree the issue will probably resurface before the Supreme Court and get
resolved there, especially now that the court's makeup has changed. As the
Rapanos decision continues to play out, some legal experts think plurality and
closely split opinions will become a bigger share of the Supreme Court's rulings
in the coming years. The Rapanos v. U.S. decision foreshadows future outcomes of
plurality decisions made by the Supreme Court, years of regulatory changes that
sway back and forth, leading to inconsistencies and a continued fight for
clarity.
 
 
What to watch:  Rapanos v. U.S. Army Corps of Engineers involves developers John
A. Rapanos and June Carabell, whose construction projects were stopped because
of the environmental regulations that make up the Clean Water Act. In the late
1980s, Rapanos was accused of filling 22 acres of wetland that he owned with
sand, in preparation for the construction of a mall, without filing for a
permit.  He argued that the land was not a wetland and that it was 20 miles (32
km) from any navigable waterways.  However, the term "navigable waterway" has
been broadly interpreted by the EPA to include areas connected to or linked to
waters via tributaries or other similar means. After several mistrials as well
as several more guilty and innocent civil, criminal, and felony verdicts, John
Rapanos took his appeal to the Supreme Court.  The following is a YouTube video
by John Rapanos explaning his position:



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