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Federal enforcement of the Clean Water Act has set off a flood of recent court decisions, regulatory actions and legislative proposals that have muddied the issue of which wetlands should be protected from pollution. The murkiness still exists even though nearly a year has passed since the U.S. Supreme Court issued a divided ruling in Rapanos v. U.S., 126 S. Ct. 2208 (2006), which sought to clarify the scope of the government’s jurisdiction over wetlands. Since that ruling, nearly a dozen federal district courts have come out with varied decisions, and three circuit courts of appeals have issued rulings in conflict with one another. Lawyers in two cases have petitioned the Supreme Court to hear the issue again, and a third is planning to do so later this month. Meanwhile, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, the regulatory agencies that enforce the Clean Water Act, issued guidance earlier this month designed to settle the confusion. Also, congressional bills are attempting to change the language of the 35-year-old act. “Courts are struggling with the strange way the court issued its decision,” said Thomas Mounteer, a real estate partner in the Washington office of Paul, Hastings, Janofsky & Walker. “It makes it tough for a lawyer giving advice to clients as to whether an isolated wetland is protected or not.” ‘Navigable waters’ Under the Clean Water Act, passed in 1972, certain pollutants are not allowed to be dumped into the “waters of the United States,” which are defined as “navigable waters.” That definition has varied in recent years, however, as has the explanation of which wetlands are protected. Rapanos, which was consolidated with another case, involved two lawsuits against commercial developers in Michigan who faced civil and criminal charges for violating the act by discharging fill into nearby wetlands. In remanding the cases, four of the justices, led by Justice Antonin Scalia, defined “navigable waters” as “permanent, standing or flowing bodies of water,” such as streams, lakes, rivers and oceans. The Scalia test stated that the act protects wetlands “with a continuous surface connection” to such protected waters. Justice Anthony M. Kennedy, in a lone opinion remanding the cases, relied on court precedent in finding that wetlands could be protected if they had a “significant nexus” to navigable waters or could “affect the chemical, physical and biological integrity of other covered waters.” In their dissenting opinion, four justices, led by John Paul Stevens, opted to affirm the judgment, but, given the differing tests introduced by Scalia and Kennedy, added that wetlands meeting either of the prevailing tests should be protected under the act. Circuit split In the year since Rapanos, the circuits have been divided on which test to follow. The 9th and 7th U.S. circuit courts of appeals have relied on Kennedy’s test, while the 1st Circuit has weighed both the Kennedy and Scalia tests. Lawyers in two 7th Circuit cases had petitioned the Supreme Court. In one, a seaplane business owner in Wisconsin lost a ruling last year due to his failure to obtain water-quality certification to build a road on a wetland. U.S. v. Heinrich, 184 Fed. Appx. 542 (7th Cir. 2006). On June 18, the Supreme Court denied the petition. Robert L. Graham, a partner at Chicago’s Jenner & Block who filed the Supreme Court petition in March, said that the wetland does not have a “significant nexus” to a neighboring lake, fails to meet the Kennedy standard, and “because of the split in the opinion of the court in Rapanos, there’s more confusion now than there was before,” he said. The 7th Circuit used Kennedy’s test in remanding another case involving a contractor who was fined for violating the act. U.S. v. Gerke Excavating Inc., 464 F.3d 723 (7th Cir. 2006). To determine whether there was a “significant nexus” between the wetlands and the “navigable waters” in question, the judge remanded the case for more fact-finding. M. Reed Hopper, principal attorney at the Sacramento, Calif.-based Pacific Legal Foundation, who represents Gerke, filed a petition with the Supreme Court on April 2. The 9th Circuit has relied on the Kennedy test in two cases. In the first, an environmental group brought suit against the city of Healdsburg, Calif., for allegedly discharging pollutants from its wastewater treatment plant into a quarry pit that drained, through an aquifer, into the Russian River. Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006). In an August ruling, the 9th Circuit found that the pit was a wetland that displayed a “significant nexus” to the river. “The wetlands that are adjacent to the Russian River were therefore adjacent to a navigable waterway,” said Charlie Tebbutt, staff attorney at the Western Environmental Law Center, which represents Northern California River Watch. But Peter McGaw, a partner at Walnut Creek, Calif.-based Archer Norris, who represents the city of Healdsburg, said that there is no “significant nexus” under the Kennedy test and no “continuous surface water connection between our pond and the navigable waterways of the Russian River,” under the Scalia test. In the second 9th Circuit case, an environmental group brought suit against a division of Cargill Inc. over a pond adjacent to a slough that fed into the San Francisco Bay. San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir.). Relying on Kennedy’s test, the 9th Circuit ruled in March that the pond is not a wetland. John Barg, founding partner of Barg Coffin Lewis & Trapp in San Francisco, who represents Cargill, said that the pond, which had no vegetation, “was not a wetland by any stretch of the imagination.” Daniel Purcell, a partner at San Francisco-based Keker & Van Nest who represents San Francisco Baykeeper, did not return calls for comment. Breaking the tide The 1st Circuit broke the tide of reliance on Kennedy alone after stating in a case brought against several cranberry farmers that “navigable waters” could be determined by using either the Kennedy or Scalia test. U.S. v. Charles Johnson, 467 F.3d 56 (1st Cir.). The 1st Circuit sent the case back for additional fact-finding. Hopper of the Pacific Legal Foundation said he plans to petition the Supreme Court on June 28 to hear the Johnson case. “There is a split among the circuits, particularly between Johnson and Gerke,” he said, noting that a pending 5th Circuit ruling could create a potential three-way split. U.S. v. Lucas, No. 06-060289 (5th Cir.). The 5th Circuit case involves three Mississippi residents who were sentenced to prison for filling wetlands to sell homes. The 5th Circuit has been among the strictest circuits in interpreting the act, said Phil Wittmann, a partner at New Orleans-based Stone Pigman Walther Wittmann who represents Lucas, one of the defendants. Two other cases are pending before the 2d and 6th circuits. In the 2d Circuit case, a homeowners group is appealing a summary judgment motion granted to a gun club that allegedly discharged lead shot into a neighboring river. Simsbury-Avon Preservation Society v. Metacon Gun Club, 472 F. Supp. 2d 219 (D. Conn. 2007). A federal judge in Connecticut relied on both the Kennedy and Scalia tests in finding that the gun club’s site, which sits on a wetland, has no “continuous connection” to the river and does not “significantly affect the chemical, physical, and biological integrity of” the river. Lawyers on both sides of the case did not return calls. In the case before the 6th Circuit, a federal judge applied both tests in ruling against two Kentucky landowners fined for polluting tributaries of major rivers. U.S. v. George Rudy Cundiff, No. 4:01-CV-00006 (W.D. Ky.). The 6th Circuit had remanded the case following Rapanos. The judge, in his ruling, said the pollution would “significantly affect the chemical, physical, and biological integrity” of a nearby river, with which the wetlands have a “significant nexus.” Les Nunn, a business law professor at the University of Southern Indiana who represents the landowners, appealed to the 6th Circuit last month. Under the Scalia test, “in order for it to be a wetland there must be a continuous surface of water so that you cannot tell where the wetland ends and the stream begins,” he said. “In this situation, the stream is many feet below the surface of the land.” Andrew Ames, a spokesman for the U.S. Department of Justice, which is handling a large portion of the post- Rapanos cases, declined to comment on all litigation. Governmental guidance On June 5, the EPA and the Army Corps of Engineers issued guidance designed to clear up some of the confusion after Rapanos. Benjamin H. Grumbles, assistant administrator for water at the EPA, said that “there has been confusion and uncertainty as to what standards or tests to apply and how the agencies would interpret those various standards.” Under the guidance, the EPA and Army Corps would use either the Scalia or Kennedy tests to determine whether a wetland is protected, he said. “We didn’t pick one over the other,” he said. “We’ll use both.” But several congressional officials aren’t satisfied. U.S. Representative John D. Dingell, D-Mich., issued a statement saying “this guidance leaves protection for these waters murky and to be determined on a case by case basis.” Dingell is one of several representatives who introduced a bill last month that would replace the phrase “navigable waters” in the act with “waters of the United States.” U.S. Senator Russ Feingold, D-Wis., plans to reintroduce a similar bill soon. In a statement, he said Rapanos “seriously jeopardized our nation’s waters.”

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