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In a July senate hearing examining the effect of the recent U.S. Supreme Court opinion in Rapanos v. U.S., 126 S. Ct. 2208 (2006), on federal jurisdiction under the Clean Water Act (CWA), Senator Hillary Rodham Clinton, D-N.Y., singled out the first post- Rapanos case, U.S. v. Chevron Pipe, 437 F. Supp. 2d 605 (N.D. Texas 2006), as a harbinger for future problems with America’s water quality. Whether political capital was gained by sounding the fire alarm over what might be a fairly obscure federal district court opinion in Texas, or if in fact there is cause for concern about America’s water quality, only the future will tell. However, the first two post- Rapanos opinions, Chevron Pipe and the 9th U.S. Circuit Court of Appeals’ Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (2006), both suggest some disorder in the courts concerning the scope of federal jurisdiction under the CWA. With the release of Rapanos, the Supreme Court issued five separate opinions indicative of the continuing confusion concerning federal jurisdiction under the CWA, which covers “navigable waters.” 33 U.S.C. 1362(7). Five justices could agree only on one thing: Federal regulators exceeded their jurisdiction. The epicenter of the confusion rests with Congress, which ambiguously defined “navigable waters” as “waters of the United States.” Federal regulators and federal courts, with Rapanos as perhaps the epitome, have long struggled with whether to emphasize the more limiting term “navigable” or the broader language “waters of the United States.” Two ‘Rapanos’ definitions pitted against each other As Chevron Pipe and City of Healdsburg indicate, the split decision in Rapanos amplifies this confusion because now there are two legally significant, yet different, definitions of the scope of federal jurisdiction under the CWA. The definitions offered in the Justice Antonin Scalia plurality (rule one) and the Justice Anthony M. Kennedy concurrence (rule two) apparently are being pitted against one another and, in the future, most likely mixed and matched, further adding to the confusion. In order to evaluate Chevron Pipe and City of Healdsburg, brief summaries of the definitions in the Scalia plurality and Kennedy concurrence are in order. In Rapanos rule one, relying on the Webster’s dictionary definition of “waters” and the text of the CWA, the Scalia plurality held that there is federal jurisdiction under the CWA only when there is a continuous surface water connection to a “relatively permanent body of water connected to traditional interstate navigable waters.” 126 S. Ct. at 2227. This bright-line definition is a historic rollback of federal jurisdiction. Besides angering environmentalists, the Scalia plurality drew sharp criticism from the scientific community for using a dictionary to ignore what science has demonstrated concerning the interaction between surface water and groundwater. The Kennedy concurrence in Rapanos is a two-part rule where the second part, the significant nexus test, offers few bright lines and is responsible for much of the debate surrounding the court’s decision. When the waters or wetlands are adjacent to nonnavigable tributaries, the test is applied and asks if such waters or wetlands have a significant nexus to the navigable waterway. However, because Kennedy’s test offers little to no guidance on when and how a significant nexus is created, it leads directly to sharp criticism and sidestepping in Chevron Pipe and its possible misapplication in City of Healdsburg. In Chevron Pipe, the federal government sought to impose civil fines under the CWA and Oil Pollution Act (OPA) against the defendants for spilling approximately 3,000 gallons of crude oil into a dry intermittently flowing tributary. The intermittent tributary was at least 40 miles from the nearest regularly flowing river. Only during a few months of the year, after substantial rain, did the tributary have a continuous connection with this river. The U.S. attorneys arguing the case assumed that the CWA covered the intermittent tributary and, as Judge Sam R. Cummings noted, they failed to provide any evidence showing that any oil actually reached “navigable waters.” Relying on past 5th Circuit precedent, Cummings reasoned that in order for the CWA and OPA to apply, “there must be ‘a close direct and proximate link between . . . [the] . . . discharges of oil and any resulting actual, identifiable oil contamination of natural surface water.’ “ In dealing with Rapanos, Cummings departed from longstanding Supreme Court precedent, arguing that Kennedy’s significant nexus test is not the controlling rule. However, as noted by many commentators, under the rule laid out in Marks v. U.S., 430 U.S. 1988 (1977), Kennedy’s concurrence is deemed to be the controlling opinion in that it concurred with the judgment on what appears to be the narrowest grounds. Nevertheless, Cummings thought otherwise, stating that Kennedy’s significant nexus test “leaves no guidance on how to implement its vague, subjective centerpiece. That is, exactly what is ‘significant’ and how is a ‘nexus’ determined?” In boldly dismissing the Kennedy test, Cummings cited Chief Justice John G. Roberts Jr.’s solo concurrence as legal authority. Roberts’ concurrence noted that, since “no opinion commands a majority of the court on precisely how to read Congress’ limits on the CWA, lower courts will now have to feel their way on a case-by-case basis.” 126 S. Ct. at 2236. Cummings aligned his decision with the rule advanced by the Scalia plurality. Noting that the intermittent tributary at issue is “strikingly similar to a dry arroyo described by Scalia in his plurality opinion as being the ‘most implausibl[e] of all’ in which to find the sweeping assertion of jurisdiction,” Cummings reasoned that there was no federal jurisdiction. While his legal analysis is unique, if one notes previous 5th Circuit precedent and the district where Cummings’ court sits, an opinion like this should not be a surprise. Despite Chevron Pipe‘s idiosyncrasies, it is still safe to say that Cummings’ focus on the factual record will be the future in CWA and OPA cases, and the 9th Circuit in City of Healdsburg bears this out. The facts concerned a wastewater treatment plant that discharged approximately 440 million gallons per year into a pond that also met the definition of a wetland. The pond was blocked only by a levee from a navigable waterway, the Russian River. Unlike the court in Chevron Pipe, the 9th Circuit found ample discussion in the Kennedy concurrence to lend substance to his test. Following Marks, the 9th Circuit applied the significant-nexus test, focusing on Kennedy’s language that the ” ‘required nexus must be assessed in terms of the [CWA] statutes, goals and purposes’ which is ‘to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.’ ” 457 F.3d at 1030. The 9th Circuit depended heavily on the district court’s factual findings and established a significant nexus relying on at least five facts: direct seepage, an intermittent yet actual direct connection through overflow, drainage via groundwater through an aquifer, a significant ecological connection, and direct effects on the chemical integrity of the river. Because the court grounded the opinion in so many facts, it is doubtful the Supreme Court will review this case . However, an argument could be made that the 9th Circuit misapplied Kennedy’s rule. Many legal minds can agree that Rapanos is the antithesis of what a Supreme Court decision should be. Three of the five opinions of substance are long and meandering. Much of the discussion is devoted to justices criticizing each other, often in very stark terms, and is short on substantive straightforward legal analysis. In Kennedy’s concurrence, about the clearest writing is the first part of his two-part rule, where he states that under the CWA, when the federal government “seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction.” 126 S. Ct. at 2249. Commercial activity occurs on the Russian River. It is not a nonnavigable tributary to another river; rather, it is a substantial, though shallow, river, which flows directly into the Pacific Ocean. Therefore, part one of Kennedy’s rule likely applies and the 9th Circuit could easily have established jurisdiction simply by noting the pond/wetlands’ adjacency to the river. Instead, the 9th Circuit treated the pond as if it were adjacent to a nonnavigable tributary and conducted a detailed factual analysis establishing a significant nexus. An argument could be made that the 9th Circuit reached the right result, but under the wrong rule. Future cases may lead to further confusion As for the future, there are several more opinions interpreting Rapanos soon to be released. Reading the tea leaves of Chevron Pipe and City of Healdsburg, more disorder in the courts awaits. This situation is further aggravated by the U.S. Department of Justice, which has departed from the rule of Marks in allowing federal prosecutors to argue either the Scalia or Kennedy test, or mix and match if they so choose. In the end, undoubtedly lawyers will be the real winners. Noting the rift between Chevron Pipe and Healdsburg, as well as the Department of Justice’s actions and the Environmental Protection Agency’s proposed modest action (expected guidance on a few issues raised in Rapanos), there is great potential for a plethora of nuanced and vague rules concerning federal jurisdiction to be developed by different federal courts around the country. Finally, since it is unlikely that Congress will conquer its political inertia and provide a meaningful definition of “navigable waters” (the locus of the entire problem), the need for legal advice on issues that touch upon the CWA or OPA surely will continue to rise. Stephen P. Louthan is an environmental and litigation associate in the Denver office of Greenberg Traurig, where he provides counsel to clients in the retail and energy industries on a variety of issues including the Clean Water Act and Oil Pollution Act. He clerked for Judge Boyce Martin Jr. of the 6th U.S. Circuit Court of Appeals.

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