Yesterday, the U.S. Court of Appeals for the Ninth Circuit decided Northern California River Watch v. Healdsburg, the first case in which a federal appellate court has applied the Supreme Court's decision in Rapanos v. United States. In Healdsburg, the Ninth Circuit upheld the U.S. Army Corps of Engineers' assertion of regulatory jurisdiction over "Basalt Pond," a rock quarry alongside the Russian River in California. This outcome was not a surprise, but the ruling seems to rest on a misreading of Rapanos.

As readers may recall, in Rapanos the Court split 4-1-4 on the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). Due to the unusual nature of the split, there is some uncertainty as to how courts should apply the decision. Justice Anthony Kennedy wrote the solo opinion concurring in the judgment, so his opinion should be controlling, insofar as it provides the narrowest grounds upon which the Court's judgment may be upheld.

The core of Kennedy's opinion is that wetlands must have a "significant nexus" to navigable-in-fact waters in order to be included in the definition of "navigable waters," and thereby subject to federal jurisdiction, under the CWA. The key to determining the scope of federal jurisdiction post-Rapanos is untangling what this "significant nexus" test requires.

The Ninth Circuit sought to follow Justice Kennedy's opinion in upholding federal jurisdiction over the Basalt Pond. It was undisputed that the Russian River is a navigable water, and, the court noted, "the district court made substantial findings of fact that the adjacent wetland of Basalt Pond has a significant nexus to the Russian River" due to various physical, hydrological, and ecological connections. This analysis was required, according to the Ninth Circuit, because "the mere adjacency of Basalt Pond and its wetlands to the Russian River is not sufficient for CWA protection." Admittedly, Justice Kennedy's concurring opinion in Rapanos is hardly a paragon of clarity, but it seems to say the precise opposite.

Justice Kennedy's opinion explains that the federal government can presume that wetlands adjacent to actual navigable waters have a "significant nexus" to such waters, and that additional evidence of an ecological connection is unnecessary for CWA jurisdiction.

As applied to wetlands adjacent to navigable-in-fact waters, the Corps' conclusive standard for jurisdiction rests upon a reasonable inference of ecologic interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone.

This, Justice Kennedy noted, was "the holding of Riverside Bayview, and he took pains to stress that he sought to base the Court's holding on its prior precedents in Riverside Bayview and SWANCC. It is only where wetlands are adjacent to non-navigable waters, as was the case for the wetlands at issue in the Carabell case, that additional evidence is required.

Healdsburg is not the only post-Rapanos decision. On June 28, the U.S. District Court for the Northern District of Texas held, in United States v. Chevron Pipe Line Co., that Chevron Pipe Line was not liable for the discharge of oil into a nearby creek and stream bed that lacked a "significant nexus" to navigable waters of the United States. Interestingly, the district court largely relied on pre-Rapanos decisions within the Fifth Circuit for its holding:

Because Justice Kennedy failed to elaborate on the 'significant nexus' required, this Court will look to the prior reasoning of this circuit. The Fifth Circuit . . . has interpreted "waters of the United States" narrowly . . . . Without any clear direction on determining a significant nexus, this Court will . . . feel its way on a cases-by-case basis. . . . Thus, as a matter of law in this circuit, the connection of generally dry channels and creek beds will not suffice to create a "significant nexus" to a navigable water simply because one feeds into the next during the rare times of actual flow. . . . [A]bsent actual evidence that the site of the farthest traverse of the spill is navigable-in-fact or adjacent to an open body of navigable water, the Court finds that a "significant nexus" is not present under the law of this circuit.

As with the Ninth Circuit's decision, I believe the result is defensible under Rapanos. What is odd, however, is the district court's explicit reliance on pre-Rapanos case law without any attempt to harmonize those cases with Rapanos (something that is likely possible to do).

These two cases are two of the first interpretations of Rapanos (the Middle District of Florida also applied Rapanos in U.S. v. Evans, issued August 2), but they won't be the last. Courts, regulators, and litigants will be sorting through this one for a while.

For those who want more on the meaning of Rapanos, I testified on this subject before the Senate Environment Subcommittee on Fisheries, Wildlife and Water, August 1. My written statement is here. The remaining written testimony from the hearing is here.