In ancient Greece, states and individuals consulted the oracle of Apollo at Delphi, seeking guidance on disputes large and small. Unfortunately, the oracle often delivered vague utterances that were so confusing as to create a new word, “Delphic”, meaning obscure prophecies. The U.S. Supreme Court is a modern day version of an oracle consulted by disputants. In two decisions released on June 19, 2006, the Supreme Court attempted to answer one relatively simple question put to it by two sets of disputants. In both cases, developers challenged governmental regulation of lands that the government claimed were significant “wetlands” leading to “navigable waters” of the U.S.

The property owners/developers (Mr. Rapanos and the Carabells) each contended that their respective properties were not tied to any navigable waterway and that the Army Corps of Engineers’ regulations attempting to regulate the properties conflicted with the plain meaning of the statute — in this case, the Clean Water Act (“CWA”) passed by Congress in 1972. The government argued for the regulation imposed by the Army Corps, and disputed both the factual and legal claims raised by the developers.

In its June 19th decision, the U.S. Supreme Court spent over 100 pages in various opinions explaining its ruling, but its Delphic pronouncement as to what the CWA actually meant and the strange alignment of the nine judges left many readers wondering “who won and why?”

The real answer will not be known in questionable cases of a potential “wetlands” for many years (and large legal fees) later. Although some might suggest that Justice Kennedy’s concurring opinion sets forth a new “significant nexus” standard for evaluating whether a wetland has a sufficient connection to a truly navigable waterway to be regulated under the CWA, a closer examination shows that this standard itself is at best a delphic pronouncement.

As the new Chief Justice of the Court explained in his separate concurring opinion: “It is unfortunate that no opinion commands a majority of the court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.” Rapanos v. United States, 547 U.S. ___, 126 S. Ct. 2208, 2236 (2006)(Roberts, C.J., concurring) (emphasis added).

The Rules for Wetlands Development Before Rapanos
The Supreme Court has twice before attempted to set rules for what types of wetlands could be regulated by the Army Corps of Engineers within the statutory boundaries of the CWA. Both prior rulings established useful guidelines for some relatively clear-cut factual instances of wetlands that can (or cannot) be regulated.

In a 1985 decision, the Supreme Court held that a wetland that directly abutted a truly navigable creek could be regulated by the Army Corps within the scope of the CWA. U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).

In a separate decision in 2001, the Supreme Court took another clear fact pattern — an abandoned sand and gravel pit that was not hydrogeologically connected to any larger navigable waterway — and held that this isolated body of water could not be regulated under the CWA merely because it contained water that was used by migratory birds as a stopping point in their travels. Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001).

Thus, prior to Rapanos, the prospective developer knew that if he was involved with a wetlands directly abutting a navigable creek he needed a permit before filling that area. The same developer also knew that if the “wetlands” area was hydrogeologically isolated and never flowed into or was not immediately adjacent to any other body of water, then he was not required to get a permit from the Army Corps.

The Facts of the Rapanos and Carabell Cases
The separate cases of Mr. Rapanos and the Carabells (consolidated before the Supreme Court) raised a question about the grey zone in between the two stark alternatives decided in the Court’s prior two wetlands cases. In each case, the developer sought to fill in a wetland area that was not immediately connected to a navigable stream, creek, river or lake. Rather, in both cases, the developer’s land was a wetland adjacent to a ditch or drain that ultimately lead to a navigable body, often by flowing into several intermediate streams or creeks. Those intermediate streams or creeks (“tributaries”) themselves were not navigable, but flowed into navigable waterways. Both developers argued that the wetlands they sought to fill (and, in Mr. Rapanos’ case, did in fact fill) were too remote to an actual navigable body of water to impose federal jurisdiction under the CWA.

In the case of Mr. Rapanos, he held three different wetlands properties. As described in the concurring opinion of Justice Kennedy, each of these properties was found by lower courts to have a connection to a drain or ditch that carried water that flowed from the ditch or drain to a navigable waterway, in all three cases ultimately leading to Lake Huron. Mr. Rapanos, after receiving an adverse report from a consultant who concluded that one of his properties had a large area of protectable wetlands, he threatened to “destroy” the consultant and thereafter sent in the earthmovers. Rapanos apparently ignored several state and federal cease-and-desist orders and ultimately faced a successful criminal prosecution. 126 S. Ct. at 2238-2239.

The Carabells’ proposed development involved forested wetlands that were separated from a drain that emptied into a creek that in turn flowed into a navigable lake. But, the wetlands were separated by a man-made berm that usually, although apparently not always, prevented a direct surface water flow into the ditch. The Carabells sought permits for their proposed fill of 12 acres of their wetlands property in order to build 130 condominium units. The Army Corps denied the requested permit, and the Carabells appealed. 126 S. Ct. at 2239-2240.

The Supreme Court Decides, But What?
These combined wetlands cases resulted in two radically different opinions each joined by four different members of the Court. Justice Scalia, joined by Chief Justice Roberts, Justice Thomas and Justice Alito, castigated the Army Corps which is charged with enforcing the wetlands provisions of the CWA, referring to it as “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act” — an expansion that Scalia and his colleagues rejected. 126 S. Ct. at 2215.

But, four other members of the Court, Justices Stephens, Souter, Ginsburg and Breyer, filed an equally forceful defense of the actions of the Army Corps, calling the Scalia opinion an “[unauthorized] judicial amendment of the Clean Water Act.” 126 S. Ct. at 2253.

This left the critical and cryptic opinion of Justice Kennedy, lying somewhere in the middle. Justice Kennedy concurred in the result of Justice Scalia’s decision but disagreed with almost all of Justice Scalia’s reasoning and found it important to restate much of the underlying facts.

While some have described this as a 4-1-4 split, it might be more accurate to call this a 5-4 split for the result (remanding the cases back to lower courts for further consideration), and a separate and different 5-4 split for the rational of how to interpret future wetlands cases.

Justice Kennedy’s concurring opinion stated that a “significant nexus” needs to be established between the wetlands and the various tributaries that connected the wetlands to a navigable body of water before federal jurisdiction under the CWA applied. But, the appellate court for the Sixth Circuit expressly founded that a “significant nexus” already existed for both sets of wetlands properties. Indeed, Justice Kennedy expressly admitted that in both cases: “the record contains evidence suggesting the possible existence of a significant nexus” 126 Sup. Ct. at 2249, and that “the end result in these cases and many others to be considered by the [Army] Corps may be the same. . . namely that the Corps’ assertion of jurisdiction is valid.” Justice Kennedy, however, found that the evidence fell somewhat short of satisfying him that this was in fact the case here. Why?

This part of Justice Kennedy’s opinion is truly delphic. While conceding that the District Court “found that each of the wetlands bore surface water connections to tributaries of navigable in fact waters” and that in the Rapanos case in particular the government had favorable testimony about the “habitat, sediment trapping, nutrient recycling, and flood peak diminution” of the wetlands from a highly credible expert. Justice Kennedy found that this was not enough.

Nowhere, however, does Justice Kennedy state precisely what was lacking in the government’s factual presentation to the courts below. As Justice Scalia observed in one of his many caustic footnotes, Justice Kennedy’s “significant nexus” standard is “perfectly opaque.” 126 S. Ct. at 2234, n.15. As Chief Justice Roberts lamented in his separate concurrence, future developers are left to “feel” their way on a “case-by-case” basis. Justice Breyer, in his separate dissenting opinion, foresaw the possibility that without further administrative regulation “courts will have to make ad hoc determinations” in this area. 126 S. Ct. at 2266.

Thus, we are left with a delphic decision by the oracle that is the Supreme Court. Developers can only look to lawyers and wetlands technical experts for a “case-by-case” approach (less charitably, but more accurately termed “ad hoc determinations” by Justice Breyer) in the future. The “obscure prophecy” left by the Supreme Court is that developers will face a much more expensive future in developing wetlands with intensive hydrogeologic investigations and expert reports required to establish (or defeat) a “significant nexus” standard. SLDT