There have been several recent developments concerning the jurisdiction of the U.S. Army Corps of Engineers ("Corps") over wetlands under the Clean Water Act:  the U.S. Supreme Court’s agreeing to hear two wetlands cases, the Ninth Circuit’s issuing a decision regarding the Corps’ jurisdiction over wetlands, and the Corps’ publishing a draft regional supplement to its 1987 wetland delineation manual for the arid west.

The United States Supreme Court Grants Certiorari in Two Clean Water Act Wetlands Cases

On October 11, 2005, the Supreme Court granted certiorari in two cases concerning the scope of the Corps’ jurisdiction over wetlands under the Clean Water Act:  United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), and Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004).  The Supreme Court consolidated Rapanos and Carabell for oral argument, as both turn on the meaning of the Corps’ regulation asserting jurisdiction over "adjacent wetlands" (33 C.F.R. § 328.3(a)(7)), and whether that regulation is consistent with the Clean Water Act and Congress’ regulatory power under the Commerce Clause.  These cases raise the following issues:  (1) whether the Clean Water Act reaches wetlands not hydrologically connected to navigable waters; (2) whether, if the Clean Water Act requires a hydrological connection, it also requires that connection to be a significant one; and (3) whether the Commerce Clause limits the extension of federal regulatory authority over wetlands in either instance.  

In brief, Rapanos involved a civil action brought against a developer for filling wetlands without a permit.  The developer argued the Corps did not have jurisdiction over the wetlands because the wetlands did not "directly abut" a navigable water.  The Sixth Circuit rejected this argument, holding that a "significant nexus" between the wetlands and navigable waters, which can be satisfied by a hydrological connection, is sufficient for Clean Water Act jurisdiction over "adjacent wetlands."  In Carabell, the Corps denied a permit application to fill wetlands that were separated from a ditch by a man-made berm.  As in Rapanos, the Sixth Circuit held the Corps had jurisdiction over these "adjacent wetlands," finding that there was a "significant nexus" between the wetlands and the ditch abutting the property that flowed into tributaries of navigable waters.

The Ninth Circuit Rejects "Significant Hydrological or Ecological Connection" Requirement for Corps’ Jurisdiction over Adjacent Wetlands

Three days after the Supreme Court agreed to hear Rapanos and Carabell, the Ninth Circuit decided that the Corps could regulate "adjacent wetlands" regardless of whether such wetlands have a "significant hydrological or ecological connection" to navigable waters.  Baccarat Fremont Developers, LLC v. United States Army Corps of Engineers, Case No. CV-02-03317-CW (Oct. 14, 2005), involved the proposed development of an office, research, and manufacturing facility on a site near the San Francisco Bay in Fremont, California.  The site contained 7.66 acres of wetlands which, at their nearest point, were 65-70 feet from flood control channels flowing to the Bay, and separated from the channels by man-made berms.  The Corps determined the wetlands were "adjacent wetlands," rejecting the developer’s argument that the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC") limited the Corps’ jurisdiction over adjacent wetlands.

The developer brought suit against the Corps, arguing that adjacency alone is insufficient to support the Corps’ jurisdiction.  The Ninth Circuit rejected the argument that SWANCC requires a significant hydrological or ecological connection between a wetland and a navigable water for the Corps’ jurisdiction based on adjacency to attach.  It distinguished SWANCC as not having addressed the Corps’ jurisdiction over adjacent wetlands, but rather having invalidated the Corps’ Migratory Bird Rule.  The court then cited the Supreme Court’s earlier decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), as having rejected the notion that the Corps must demonstrate a significant hydrological or ecological connection between the wetland in question and the jurisdictional water to which it is adjacent in order to assert "adjacent wetlands" jurisdiction.

With Baccarat Fremont Developers, the Ninth Circuit joins most other circuit courts of appeal that have addressed the issue in adopting a narrow reading of SWANCC.  The Ninth Circuit’s decision can be expected to embolden the Corps’ efforts to assert greater jurisdiction under the Clean Water Act within the Ninth Circuit.  Its sweeping language, eschewing any requirement for the finding of a "significant nexus," will also likely be used by the Corps in its section 404 permitting, and by the government and private parties alike in litigation, to assert Clean Water Act jurisdiction over non-wetland aquatic features based solely on their adjacency to navigable waters.

The Corps Issues Regional Supplement for the Arid West; Comments Due
November 3

Corps Districts in the western United States recently announced the availability of the draft Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region.  According to the notice of availability, the draft is currently being field tested by interagency teams of state and federal agencies to evaluate its ease of use and "whether its use will result in any spatial changes in wetland jurisdiction for Clean Water Act Section 404 purposes."  This draft regional supplement to the Corps’ 1987 wetland delineation manual is intended to provide information concerning wetland indicators and delineation guidance that are specific to the arid west region.  The draft regional supplement, along with the testing protocol and questionnaire, are available on line at ftp://ftp.usace.army.mil/pub/erdc/arid_west/ (link not working, 6/19/07).  Comments on the draft must be submitted by November 3, 2005, to Ms. Katherine Trott (CECW-LRD), U.S. Army Corps of Engineers, 441 G Street, NW, Washington, DC 20314-1000, or by email to 1987_Manual@usace.army.mil.

The regulated community and other interested parties should continue to monitor the Corps’ progress on finalizing the regional supplement, as it may bear on the extent to which the Corps will seek to assert jurisdiction over aquatic features.