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The Key to Rapanos

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From Justice Kennedy’s concurrence:

[W]etlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, 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.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

And this guidance for the US Army Corps of Engineers:

When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction. Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries. Given the potential overbreadth of the Corps’ regulations, this showing is necessary to avoid unreasonable applications of the statute. Where an adequate nexus is established for a particular wetland, it may be permissible, as a matter of administrative convenience or necessity, to presume covered status for other comparable wetlands in the region. That issue, however, is neither raised by these facts nor addressed by any agency regulation that accommodates the nexus requirement outlined here.

This interpretation of the Act does not raise federalism or Commerce Clause concerns sufficient to support a presumption against its adoption. To be sure, the significant nexus requirement may not align perfectly with the traditional extent of federal authority. Yet in most cases regulation of wetlands that are adjacent to tributaries and possess a significant nexus with navigable waters will raise no serious constitutional or federalism difficulty. Cf. Pierce County v. Guillen, 537 U. S. 129, 147 (2003) (upholding federal legislation “aimed at improving safety in the channels of commerce”); Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 524-525 (1941) (“[J]ust as control over the non-navigable parts of a river may be essential or desirable in the interests of the navigable portions, so may the key to flood control on a navigable stream be found in whole or in part in flood control on its tributaries … . [T]he exercise of the granted power of Congress to regulate interstate commerce may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that commerce”). As explained earlier, moreover, and as exemplified by SWANCC, the significant-nexus test itself prevents problematic applications of the statute. See supra, at 19-20; 531 U. S., at 174. The possibility of legitimate Commerce Clause and federalism concerns in some circumstances does not require the adoption of an interpretation that departs in all cases from the Act’s text and structure. See Gonzales v. Raich, 545 U. S. 1, __ (2005) (slip op., at 14) (“[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence” (internal quotation marks omitted)).

The Kennedy concurrence bluntly instructs the Corps to end its era of overreach. The Department of Defense should move quickly to assure landowners that it will do so.

The Chief Justice added a note of urgency in his separate concurrence, noting the agency’s indifference to previous reprimands from the Court, and also lecturing his colleagues on the Court’s failure to actually help landowners via the promulgation of clear guidance:

Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.

It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977)). What is unusual in this instance, perhaps, is how readily the situation could have been avoided.*

It would be a good idea for the White House to demand draft regulations from DoD within two weeks on the subject of “substantial nexus” and “navigable waters.”


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