The Meaning of “Navigable Waters” in the Clean Water Act: Limits on CWA Jurisdiction

Rapanos v. United States

John Rapanos was informed that the wetlands on his property, which were 11 to 20 miles from the nearest body of navigable waters, were waters of the United States. Rapanos filled the wetlands without a permit. The Clean Water Act’s wide ranging criminal liability and civil fines make the process of filling a wetland a difficult and expensive one, and the Army Corps of Engineers “exercises the discretion of an enlightened despot” (as the Court puts it). The “waters of the United States” include “territorial seas” and just about any possible waterway imaginable (temporary streams, storm drains, etc). The Act prohibits “the discharge of a pollutant” including “dredged spoil, … rock, sand, [and] cellar dirt,” a prohibition from which a person may be exempted by a permit issued from the Administrator of the EPA or the Secretary of the Army.

Dissatisfied with the definition of “navigable waters” (“navigable in fact or readily susceptible of being rendered so”) the Corps adopted a far broader definition which included wetlands, rivers, streams, mudflats, sandflats, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and those immediately adjacent to those for which “the use or degradation of which could affect interstate commerce.” The Corp, adopting the “migratory bird rule” interpreted this to include “tributaries” and interpreted that to include, in the Court’s words “virtually any land feature over which rainwater or drainage passes and leaves a visible mark – even if only ‘the presence of litter or debris.’” In Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) the Court clarified that its previous (Riverside Bayview) case which allowed the Corp to extend jurisdiction over a wetland immediately abutting a navigable water did not extend to “nonnavigable isolated, intrastate waters;” a ruling which some lower courts interpreted to not include a direct abutment requirement.

The defined meaning of “navigable waters” in the Act is “the waters of the United States” which explicitly extend further than those waters that are navigable in fact or readily susceptible to be rendered so “as a means to transport interstate or foreign commerce.” Justice Scalia, writing for four Justices and relying on Kennedy’s opinion concurring in judgment for a majority, avoids relying on the qualifiers “navigable” and “of the United States” and focuses on the difference between “waters” and “water” of the United States. “Waters,” Justice Scalia argues, refers to “relatively permanent standing or flowing bodies of water.” Though the Court extended this definition to include the wetlands abutting “hydrographic features” it did not extend that definition to non-hydrographic features in their own right. The CWA refers to other features, like channels and conduits, in the definition of a “point source” which itself is used to define a source of navigable waters. This reading, Scalia argues, is congruent with the stated purpose of the law. Whatever the definition of “waters” may be, the majority argues that “regulation of land use … is quintessential state and local power,” so the Corps interpretation requires a much more concrete basis to usurp such power.

Whenever the opinion refers to Riverside it notes that the extension of the ‘navigable waters’ was effected through a recognition of the significant nexus between those waters and the wetlands with which it was difficult to distinguish, rather than the ecological considerations that were also raised in the case. Scalia takes the opportunity here to define “adjacent” only to include “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” To quell concerns he points out that the Act prohibits the discharge of pollutants even into a point source feeding a water of the United States.

The opinion then derides the dissents, arguing that it is almost exclusively based in policy considerations, and criticizes Justice Kennedy’s argument that the case should hinge on the meaning of “significant nexus” from SWANCC, as Fourth Amendment cases hinge on the meaning of “reasonable,” arguing that this is illegitimate as the term is derived from the case rather than the law, and was used as a test to see if a given water was practically indistinguishable from waters of the United States and calling Justice Kennedy’s standard “perfectly opaque.”

Chief Justice Roberts, concurring, laments the fact that there is no clear rule, since the majority

Justice Kennedy argues that the case should be remanded for proper consideration of what “significant nexus” means. “[A]n agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not I conflict with the expressed intent of Congress.” Justice Kennedy notes that it was the significant nexus that allowed extension in Riverside and the lack thereof that precluded extension in SWANCC. Relying on Congressional intent as well as the text itself Kennedy endorses the premise that “navigable waters” is a broader term than what is in fact or might be made truly navigable. Next, Kennedy suggests that the first limitation the plurality places on the law, that of relative permanency, makes little practical sense given that huge riverways sometimes run dry and that the plurality’s definition of “hydrographic features” has no basis in precedent. As for Scalia’s argument that a point source is defined separately, Kennedy attributes the inference that (a) a point source is a waterway that is intermittent; (b) the separate definitions imply point sources are distinct from navigable waters (this was, to be sure, the upshot of the argument); therefore, navigable waters cannot be intermittent. As for the second limitation, that there must be continuity of water surface Kennedy argues that the Court in Riverside relied on adjacency, not distinguishability to justify the Corp’s jurisdiction since the wetlands were by no means “indistinguishable” from waters of the United States in their own right. The matter of distinguishability then went only to whether the Corp’s conclusion was logical. Kennedy also argues some factual matters about the way wetlands interact with navigable waters that support the Corp’s broader definition and suggests that the definitive character of Scalia’s ruling ties the hands of the Corps.

On the other hand, Justice Kennedy continues, while the word “navigable” in the law cannot mean navigable in fact, it must have some limiting role. Here Kennedy introduces the rule that to the extent that a significant nexus between the disputed feature and truly navigable waters that feature falls within the statute. As for wetlands in particular, this opinion leaves the Corps free to designate some wetlands adjacent to tributaries to be sufficiently incorporated into the system of the navigable waterway. Kennedy sees no conflict between this test and traditional federalism concerns.

Applying this test to one of the consolidated cases Kennedy asserts that this test would require a real quantification of the hydrologic connection between wetlands and the navigable in fact waterways before such a connection could be found to be sufficient. In the next, Kennedy conveys skepticism about speculative or conditional connections.

Justice Stevens’ dissent cites Chevron, holding that the Court’s review is limited to the reasonableness of the agency’s determination, and recalls the practical concerns that suggested that the Corps’ assertion of jurisdiction over the wetlands in Riverside was reasonable. Justice Stevens also aims to distinguish SWANCC because it was not based on the adjacency of a water feature, but with an isolated feature (to which the majority earlier responded that the point is that if an isolated water feature is not covered, and isolated wet feature cannot be either). The “integral” value of abutting wetlands to the “Nation’s waters” is supported by their ecological function and underscored, so the argument goes, by Congress’ acquiescence to the Corps’ regulations.

After echoing the criticism by Justice Kennedy that the rules imposed by the plurality are without basis in the text, purpose, or development of the law, Justice Stevens argues that the requirement of relative permanence is arbitrary and mistaken as a practical matter. Stevens then argues that the plurality’s reliance on the statutory difference in definition between point sources and navigable waters is irrelevant and that the appeal to the stated purpose of the act ignores congressional findings that States should have a larger role to play upon the Acts’ reevaluation 5 years later. Next, Stevens argues that the cannon of construction requiring protection of state authority is misplaced because Congress may pursue its interest in protecting its own waters by, as the congressional record indicates, controlling the discharge of pollutants at the source. Stevens then addresses a second cannon of construction, that of ‘constitutional avoidance,’ arguing that there is no reason to believe that Congress may not control the watersheds that interact with its navigable waters. As for the plurality’s second rule (that “adjacent” wetlands share a water surface) Stevens argues that this neglects the plain meaning of “adjacent” which means lying near, close, or contiguous, and that this should be left to the Corps per Chevron deference.

Stevens then suggests that wetlands categorically have a significant nexus with their adjacent navigable waters and while he does not substantially disagree with Kennedy’s opinion he does not think it prudent to write a judicially crafted rule into the law.

Justice Breyer writes, dissenting, that the Army Corps of Engineers’ role in carrying out the CWA extends to the limits of Congress’ interstate commerce authority, and thus is not for the Court to question, nor are the courts in any position to question, the Corps’ professional determinations.