A divided Supreme Court ruled 6/19/06 that the Army Corps of Engineers may have impermissibly exercised jurisdiction under the Clean Water Act over wetlands connected to tributaries of “navigable waters” only by man-made drains and ditches. To constitute a “navigable water” under the Act, a water or wetland must have a “significant nexus” to waters that are or were navigable in fact or that could reasonably be made so. The Sixth Circuit ruled that even a transitory “hydrological connection” to a tributary of a “navigable water” constituted a “significant nexus,” a test satisfied by the drains and ditches. The Supreme Court reversed and remanded, but no opinion garnered a majority “on precisely how to read Congress’ limits on the reach of the Clean Water Act.”In the plurality opinion joined by Chief Justice Roberts and Justices Thomas and Alito, Justice Scalia set forth a two-part test for whether wetlands are subject to the Act: “First, that the adjacent channel contains a ‘water of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” The plurality concluded that “ecological considerations” warrant treating a wetland as part of an adjacent navigable water only where there is a continuous surface connection—and, thus, a “boundary-drawing problem”—between the wetland and the adjacent navigable water. The plurality remanded the case for consideration of whether the drains and ditches contained a permanent flow of water, and whether they possessed a surface connection sufficient to sustain the Corps’ jurisdiction.
Justice Kennedy, concurring only in the judgment, took issue primarily with the plurality’s rejection of “ecological considerations.” Noting that the “absence of an interchange of waters [may make] protection of the wetlands critical to the statutory scheme,” Justice Kennedy concluded that “wetlands possess the requisite nexus … if the wetlands … significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” The concurrence also contested the plurality’s permanence requirement. Justice Kennedy did recognize, however, that the wetlands’ proximity to navigable-in-fact waters should be considered “on a case-by-case basis” to avoid “the potential overbreadth of the Corps’ regulations[.]” Justice Kennedy concurred in the remand because the lower courts had not adequately considered “whether the specific wetlands at issue possess a significant nexus with navigable waters.”
This decision is significant to any business involved in the development of property in or around wetlands.