Applying Rapanos in Cundiff:

In United States v. Cuniff, the U.S. Court of Appeals for the Sixth Circuit rejected a landowner challenge to federal jurisdiction. At issue was the scope of federal regulation under the Clean Water Act over privately owned wetlands after Rapanos v. United States. Assuming the Cuniff opinion paints an accurate picture of the relevant details, and the extent of the ecological connection between the relevant wetlands and local waters, the court may have been correct to rule against the landowners. But the Court's discussion of jurisdiction unnecessarily complicated the relevant analysis, suggesting (as have other courts) that there are multiple paths for asserting jurisdiction post-Rapanos.

In Rapanos, the Supreme Court split 4-1-4 over the proper test for determining when wetlands adjacent to tributaries could constitute "waters of the United States" subject to federal control. Justice Scalia's four-justice majority adopted a narrow definition of "waters of the United States" that requires a relatively continuous flow of surface water to establish that a wetland is subject to regulation. Justice Kennedy adopted a more expansive view, holding that the Clean Water Act extends to any waters or wetlands with a "significant nexus" to navigable waters. The four dissenters adopted an even more expansive view of federal jurisdiction, completely deferring to any federal agency determination, and suggesting that lower courts could find jurisdiction if either the Scalia or Kennedy standard is met. This suggestion, noted in Cuniff and other cases, would suggest there are wetlands that would fail Justice Kennedy's "significant nexus" test, but somehow satisfy the other eight justices. I think this is wrong.

Cuniff dodged the issue in one respect, as it found that jurisdiction could be established under either the Scalia-plurality or Kennedy test. My point is that if Rapanos is read properly, the additional analysis was unnecessary. Only the Kennedy test is controlling as there is no reason to believe there are any wetlands that would meet the Scalia-plurality test for jurisdiction without also meeting the Kennedy test. This is a point the Scalia plurality made explicit, explaining that "relatively continuous flow is a necessary condition for qualification as a 'water' not an adequate condition." (emphasis in original). Thus, even with a relatively continuous flow, additional indicia of a significant hydrological connection could be required for jurisdiction, and such indicia would almost certainly satisfy the relatively flexible test articulated by Justice Kennedy. Alternatively, were there to be a wetland connected to a navigable-in-fact water by a "relatively continuous flow" of water that is so inconsequential as to fail Justice Kennedy's "significant nexus" test, there is little reason to think it would satisfy that of the Scalia plurality. [For more on my assessment of Rapanos, see here and here.]

In these sorts of cases I think lower courts should focus exclusively on the "significant nexus" requirement as articulated by Justice Kennedy. This may be time consuming, but it is the proper way to apply Rapanos. If courts (and others) want a clearer jurisdictional test than Justice Kennedy's opinion provides, the U.S. Army Corps of Engineers and Environmental Protection Agency will have to refine its regulations to clarify its interpretation of the scope of "waters of the United States." Such a rule-making is long overdue.

UPDATE: Speaking of Rapanos, here's an op-ed by PLF attorney Reed Hopper on John Rapanos' settlement of his case with the government.


I hadn't seen your view of the Scalia test before as having some sort of "significance" requirement. If you're right that would seem to avoid the Marks problems the Sixth Circuit seemed so wary of. Why do you think Courts all seem to have read the Scalia test as being more formalistic, where the surface connection can be insignificant (thus failing the Kennedy test) but enough for the plurality? From the Seventh Circuit's opinion (likely Judge Posner):

Thus, any conclusion that Justice Kennedy reaches in favor of federal authority over wetlands in a future case will command the support of five Justices (himself plus the four dissenters), and in most cases in which he concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality), the exception being a case in which he would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality's insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapanos dissenters when the balancing approach of Justice Kennedy favors the landowner. But that will be a rare case, so as a practical matter the Kennedy concurrence is the least common denominator (always, when his view favors federal authority).

I guess your view is that, this 8-1 theoretical view in inaccurate: instead the plurality would still side with Justice Kennedy because they too would not countenance an "insignificant" surface connection, no? Anyway, fascinating stuff.

Also, I loved the John Prine lyrics in the footnote.
2.8.2009 11:15am
arbitraryaardvark (mail) (www):
You, and the opinions, use the term "plurality". Isn't this technically incorrect, where there is a tie as here a 4-1-4 split? This occurred to me in EV's recent discussion of Pico.
I've been thinking a lot about the Marks rule in light of Crawford's 3-3-3 split. I'm tentatively using the terms controlling opinion and concurring opinion and avoiding "plurality." As Applekeys cites the 7th, it's a little unclear, at least to me, in Rampanos which is the narrowest for Marks purposes.
2.8.2009 3:30pm
man from mars:
"Flow My Tears," the policeman said.
2.8.2009 3:55pm
Sean Hecht (mail) (www):
I don't think I understand your argument - or maybe I do, and just disagree. It is true that Scalia's opinion says that "relatively continuous flow is a necessary condition for qualification as a 'water,' not an adequate condition." But this comes up in a different context - whether certain man-made conveyances are "waters of the United States." And I can't see why this statement leads you to your conclusion.

Scalia's opinion contains a clear statement of the plurality Justices' view of the legal rule:
Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: First, that the adjacent channel contains a "wate[r] 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.

I don't see anything in the opinion that indicates those Justices would consider any other factors besides those two. And the opinion went on to explicitly reject Kennedy's entire mode of analysis, specifically the idea that Kennedy's idea of examining scientific criteria to determine whether a "significant nexus" exists is an any way relevant to the jurisdictional determination:
One would think, after reading Justice Kennedy's exegesis, that the crucial provision of the text of the CWA was a jurisdictional requirement of "significant nexus" between wetlands and navigable waters. In fact, however, that phrase appears nowhere in the Act, but is taken from SWANCC's cryptic characterization of the holding of Riverside Bayview. Our interpretation of the phrase is both consistent with those opinions and compatible with what the Act does establish as the jurisdictional criterion: "waters of the United States." Wetlands are "waters of the United States" if they bear the "significant nexus" of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be "waters of the United States"? Justice Kennedy's test is that they, "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable,' " post, at 23 (emphasis added). But what possible linguistic usage would accept that whatever (alone or in combination) affects waters of the United States is waters of the United States?

So what more would those Justices ask for besides the physical connection? And what in the Scalia opinion would guide you to that answer?
If you simply mean that in practical terms, you don't believe that there's a wetland in the whole country that would pass one of the tests but fail the other, it's conceivable you might be correct. But I read the plurality opinion as stating quite directly that they believe that by definition, physically connected waters are jurisdictional (in Kennedy's and SWANCC's terminology, have the requisite "significant nexus"). Kennedy, on the other hand, uses a complex test for jurisdiction. How could you draw the conclusion that the two tests are coextensive without applying each test on a case by case basis?

Moreover, rather than complicate matters as you suggest, in many cases the application of the Scalia test should make it easier to figure out whether jurisdiction is proper. If the physical connection is there, there is simply no reason to go through the "significantly affect the chemical, physical, and biological integrity" test offered by Kennedy - all the other eight Justices would find jurisdiction without reference to this analysis that they all found irrelevant.

I have to say that I personally find the Scalia test deeply unsatisfying, as it is not science-based - it privileges surface connection over other equally important hydrological connections - and I also believe that it is unduly narrow. (I also find the Kennedy test unsatisfying for various reasons.) But I still can't see anything in the plurality opinion that leads me to think that the plurality Justices would ever decline to find that a stream or wetland that satsfied their two criteria (first, that the adjacent channel contains 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) is jurisdictional, regardless of whether it passed the Kennedy test of affecting the "chemical, physical, and biological integrity" of other waters.

2.9.2009 2:04am
I think that is the most amount of money a Rapanos has ever had to pay for their wrongdoing.
2.9.2009 9:21am
Jonathan H. Adler (mail) (www):
Sean --

I think the other language from the Scalia opinion leads to the same conclusion as the language I quoted. The test you cite reaffirms that not just any "continuous surface connection" will do. Specifically, the second condition for finding a wetland to be covered by the Act is:
the wetland has a continuous surface connection with that water, making it difficult to determine where the "water" ends and the "wetland" begins.
This language reinforces that the continuous surface connection must be sufficiently significant that it creates a line-drawing problem. Thus, a "continuous surface connection" remains a necessary, but not sufficient, condition for jurisdiction under the Scalia opinion.

Given that the "continuous surface connection" must be significant, I believe that, as a practical matter, there are unlikely to be any wetlands that would meet this condition but not satisfy Justice Kennedy's opinion. That is, if the "continuous surface connection" is substantial enough to create the line-drawing problem that Scalia's opinion references, I do not see how it would not also satisfy any reasonable "significant nexus" requirement. The converse is not true, however, as plenty of wetlands will satisfy Justice Kennedy's "significant nexus" test but not the plurality's more rigid test.

The other thing worth pointing out is that these problems would largely go away if the Corps and EPA were to have a new rulemaking, revise their regs, and develop formal indicia for what constitutes a "significant nexus." Several of the opinions in the case note that a rulemaking could eliminate the need for case-by-case determinations, and at key points the Scalia opinion uses the language of Chevron step two, creating further space for the agencies to operate. The question now is whether they will take advantage of this opportunity.
2.9.2009 2:36pm
Sean Hecht (mail) (www):
Thanks for the response, Jonathan.

Two quick thoughts in reply:
(1) You and I interpret the relevant language very differently. To me, the way the sentence is written, "making it difficult to determine where the 'water' ends and the 'wetland' begins" describes why Scalia believes the test of whether "the wetland has a continuous surface connection with that water" is the correct one. I don't believe that second clause adds any further requirement, nor does anything else in Scalia's opinion lead me to the conclusion that there is a further requirement. (Again, the "continuous flow" statement you referenced above does not seem at all relevant to the "continuous surface connection" test, as the two phrases refer to different concepts - the use of the word "continuous" in both phrases notwithstanding.)
(2) Even if you are correct, the two tests seem, conceptually and in practice, completely different to me here - again, especially since the Scalia opinion explicitly rejected the Kennedy methodology. So it's hard for me to see how it would be justifiable to conflate them into one test - the Kennedy test that the plurality Justices found inapplicable.

I do agree with the point in your last paragraph - the guidance issued so far is not very helpful, whatever one's view of the proper interpretation of the court's ruling or of the best policy strategy here. My sense is that everyone affected by it is more or less dissatisfied with the current situation.
2.9.2009 4:57pm
Jonathan H. Adler (mail) (www):
Sean --

Taking your points in order:

1) I agree that Scalia is explaining why the continuous surface connection is important, but I also think it clear from his discussion here and elsewhere in the opinion that a continuous surface connection that does not create a potential line-drawing problem would not be sufficient for jurisdiction. The undercurrent of the entire opinion is that it is improper for the agencies to regulate "lands" as "waters," and that only a blurring of the boundary between the two can justify roping in the former in the process of regulating the latter. Thus, while Scalia identifies the need for a continuous surface connection, he never says that such a connection to a permanent body of water is, by itself, a sufficient basis for jurisdiction.

2) I agree that the two tests are quite different, both "conceptually and in practice." I did not mean to suggest that the two tests are one and the same. But I also believe that there are unlikely to be any wetlands that satisfy the Scalia test that would not also satisfy the Kennedy test. That is, if the surface water connection between a wetland and actual waters is so minimal that it is impossible to demonstrate a "significant nexus" as defined by Justice Kennedy, I find it implausible that the connection would satisfy Justice Scalia's opinion.

One implication of my analysis is that Justice Kennedy's opinion is that Justice Kennedy's opinion provides the narrowest grounds for the Court's holding and is thus the controlling opinion. Satisfy Justice Kennedy that there is jurisdiction, and there is jurisdiction, as the four liberals are always along for the ride. Therefore, Justice Kennedy's opinion is the only one lower courts need consider. This isn't conflating the two tests, or collapsing them into a single test. Rather, it is merely recognizing that under Marks the narrower test is controlling.

Another implication is that the Corps and EPA could probably get away with a fairly expansive redefinition of "waters of the United States" subject to their jurisdiction. One reason for this is that Justice Kennedy makes clear that it is legitimate for the agencies to identify ecological criteria that are generally indicative of a "significant nexus," and that such a determination (if done through a notice-and-comment rulemaking) would get deference from the Courts, even if it results in a somewhat over-inclusive rule. Thus, I don't think Rapanos represents the major setback for federal regulatory jurisdiction that many hoped or feared.

Thanks for taking the time to respond to these posts.

2.9.2009 11:23pm
Sean Hecht (mail) (www):
Thanks, Jonathan. I get what you're saying about Marks, and if that doctrine really had to apply here I'd probably agree with you on the result. But I'm skeptical that the Marks "narrower grounds" rule applies in a case like this where there is not really a conceptually "narrower" test to be applied. In any event, it will be interesting to see what happens under the new administration with these regulatory determinations.
2.10.2009 12:40am
Jim Coody PE (mail):
Professor Adler said:

"…In these sorts of cases I think lower courts should focus exclusively on the "significant nexus" requirement as articulated by Justice Kennedy. This may be time consuming, but it is the proper way to apply Rapanos…"

Dear Professor Adler,

I am a Wetlands Consultant and Professional Engineer who has worked in the greater Houston area for over twenty years. Last year I met you at a wetlands seminar at Rice University.

You make a compelling and very logical argument for the significant nexus test, but as a practicable matter significant nexus is too vague and irregular for use in conducting jurisdictional determinations. Under the most recent Rapanos Guidance the definition of significant nexus has been expanded and enhanced, apparently for the purpose of recapturing non-navigable, isolated, intrastate waters that were deregulated by SWANCC (and Rapanos).

I have attempted to understand and apply the technical criteria for significant nexus when evaluating isolated wetlands and ditches, and I have found that in most cases any "nexus" between isolated waters and downstream traditional navigable waters is usually insubstantial, highly speculative, subjective, arbitrary, and difficult or impossible to conclusively document with facts and data that can be independently verified and repeated. This is especially true with isolated waters that are located inland and miles away from traditional navigable waters.

The recent Rapanos Guidance attempts to move "traditional navigable waters "closer to inland waters by defining recreational use, and susceptibility for such use, as new criteria for traditional navigable waters. A shallow ditch that could potentially float a small plastic canoe may be traditional navigable waters under the Rapanos Guidance. This approach may make it easier to establish a "significant nexus" but ordinary citizens (and Attorneys) might consider this approach incredulous, arbitrary and capricious.

The Scalia criterion is much more concise and applicable for field work. Under Scalia, a Wetlands Consultant must first make a "relatively permanent waters" assessment, which is fairly straight-forward in most cases. Then any adjacent wetlands that directly abut the relatively permanent waters can be readily identified and delineated. The jurisdictional determination can be easily confirmed, documented, and independently verified.

In my opinion, the EPA should appeal to Congress to start the process of amending the U.S. Constitution so as to clearly endow the federal government with the power to regulate non-navigable, isolated, intrastate waters. New regulations and/or legislation will always wind up in court until the underlying constitutional problem is resolved. Alternatively, the federal government could turn the wetlands regulatory program over to the States.

Realistically, it seems unlikely that there will be any significant changes to the status quo under the Obama Administration because the task is simply too complex and difficult.

Jim Coody PE
Houston, Texas
2.11.2009 9:47pm

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