Further fueling the confusion over the jurisdictional reach of the federal Clean Water Act, on February 20, 2007, the U.S. Supreme Court denied review of a case which considered whether the U.S. Army Corps of Engineers is authorized to restrict development on wetlands separated from adjoining streams and lakes by man-made ditches (Baccarat Fremont Developers LLC v. U.S. Army Corps of Engineers, U.S., No. 06-619, certiorari denied, 2/20/07).
Thus, an opinion by the U.S. Court of Appeals for the Ninth Circuit was allowed to stand that ruled the Corps of Engineers is not required to show a "significant hydrological and ecological connection" between wetlands and adjoining streams before it can exert authority over the wetlands (Baccarat Fremont Developers LLC v. U.S. Army Corps of Engineers, 425 F.3d 1150,(9th Cir. 2005).
In that case, the Baccarat Fremont Developers asked the Supreme Court for a ruling that the Ninth Circuit was required to issue a "redetermination" in light of Justice Anthony Kennedy's concurring opinion in Rapanos v. United States, U.S., No. 04-1034 (2006).
In Rapanos, Justice Kennedy urged that a "significant nexus" to waters of the United States must be established for jurisdiction over wetlands to exist under the act. Kennedy said a mere hydrologic connection should not be enough to establish a significant nexus in all cases. Whether an individual wetland significantly affects traditionally navigable waters should be the test, Kennedy wrote.
The government, in Rapanos, brought civil enforcement proceedings against a developer who had backfilled, without a permit, three Michigan wetlands lying near ditches that eventually emptied into traditional navigable waters. The district court found federal jurisdiction over the wetlands because they were adjacent to waters of the United States. The U.S. Sixth Circuit Court of Appeals affirmed, based on the hydrologic connections to the nearby ditches or the more remote navigable waters. The Supreme Court vacated the Sixth Circuit’s opinion and remanded the case.
The Rapanos opinion was a five-to-four plurality decision, and, therefore, does not provide clear guidance to lower courts or regulated entities as to the scope of the CWA. Justice Scalia, in an opinion joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, wrote that intermittent and ephemeral streams are not covered by the CWA. Thus, the Corps’ regulatory definition of “waters of the United States” was not a permissible construction of the statute. Justice Kennedy wrote a concurring opinion that proposed an ambiguous test of whether a “significant nexus” exists as to waters that are, were, or may become navigable. But Justice Kennedy provided little guidance as to how the “significant nexus” test would or should be applied in practice.
Because of the lack of clarity from the Supreme Court, lower courts have struggled with interpreting the implications of Rapanos.
The refusal to hear the Baccarat, which effectively lets the law of that case stand in the Ninth Circuit, adds to the confusion of the meaning of the Rapanos case.