Court's ruling a win for property rights advocates

Issue Date: July 5, 2006

By Christine Souza
Assistant Editor

The U.S. Supreme Court decision pertains to which water bodies the federal government regulates under the Clean Water Act.

In a key property rights decision, the U.S. Supreme Court has ruled that federal regulators misinterpreted the Clean Water Act when they refused to allow two Michigan property owners to build on part of their privately owned land because the regulators deemed it a wetland.

The decision is expected to set a precedent as it pertains to which water bodies the federal government regulates under the Clean Water Act, and is being called a win for property rights advocates.

"We are pleased with this decision, which adopts the position Farm Bureau put forth on this matter in its filing with the court," said Brenda Washington Davis, California Farm Bureau Federation Natural Resources and Environmental Division managing counsel. "We took the position that federal jurisdiction over private land is narrow under the act."

The 5-4 decision in Rapanos v. United States, in which Justice Anthony Kennedy was the swing vote, imposes a "significant nexus" test for federal jurisdiction over wetlands. Under the ruling, the government will be required to demonstrate facts regarding the quantity and regularity of water flow into adjacent tributaries, as well as significance of hydrologic connections for downstream water quality.

The federal government had brought a civil enforcement action against John Rapanos, who backfilled three areas on his land without a permit, allegedly in violation of the Clean Water Act. In a related and consolidated case against Keith Carabell, he was denied a permit to deposit fill in a wetland that was separated from a drainage ditch by an impermeable berm.

In each case, the federal district court and circuit court of appeals found the federal government had jurisdiction over the sites. But, the Supreme Court found the Army Corps of Engineers exceeded its authority under the Clean Water Act.

The court said the agency improperly asserted regulatory jurisdiction in each case. The corps erroneously required the landowners to acquire permits to deposit rocks and dirt in several areas on their properties, which are adjacent to a variety of water body types.

Of concern in the ruling, said Davis, is the lack of a clear majority among the justices as to where the agency should have drawn the line. Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. argued for a reduction in the corps' regulatory role.

In an opinion authored by Scalia and joined by the other justices, the plurality held that in order to bring a wetland under federal regulatory jurisdiction, it's necessary to show that the adjacent water is a relatively permanent body of water. That would include a river, ocean, lake or stream. In addition, the justices said a wetland has to have a continuous surface connection with that water.

In his opinion, Scalia noted, "In applying the definition to ephemeral streams, wet meadows, storm sewers and culverts, directional sheet flow during storm events, drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the corps has stretched the term 'waters of the United States' beyond parody."

Kennedy wrote a separate opinion and called for a case-by-case approach to determining jurisdiction. He suggested a "significant nexus" test. His rule is that wetlands constitute "navigable waters" if 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.'"

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented, in an opinion that would have upheld corps jurisdiction over the Carabell and Rapanos wetlands on the basis that the court's previous precedent did not require any continuous surface connection between regulated wetlands and adjacent waters.

As to this view, however, Kennedy's swing opinion stated, "The dissent would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters. The deference owed to the corps' interpretation of the statute does not extend so far."

In her evaluation, Davis said, "The plurality opinion takes a much narrower view of the corps' jurisdiction than what would apply if Justice Stevens' dissenting view had prevailed. As the swing vote on this issue, however, Justice Kennedy has created a situation where the United States may elect to prove jurisdiction under a test that may sometimes appeal to the plurality opinion written by Justice Scalia, thus limiting that jurisdiction considerably."

Jack King, CFBF National Affairs manager, said Farm Bureau has long held the view that these regulations have gone beyond what Congress intended when it passed the Clean Water Act.

"The interpretation of the Clean Water Act has been a nightmare for a number of California farmers and ranchers. It is such an overreaching implementation, many farmers have been caught unaware that they were even in violation of the act," King said.

Unless Congress amends the law or federal regulators change their rules, the likely outcome from this case is more litigation in lower courts, Davis predicted.

Richard Adam Jr., an attorney with Chern & Brenneman, said he sympathizes with the Michigan landowners. His law firm undertook Clean Water Act representation of Adam Bros. Farming Inc., a family vegetable operation in Santa Maria.

"I'm happy that the Supreme Court has decided to tackle the issue, but only time will tell how this opinion will be interpreted by federal regulators," Adam said. "It is important to point out that overzealous and inappropriate regulatory interpretation has cost Americans, and in my opinion farmers in particular, tremendous amounts of money and hardship."

Adam added, "As Justice Scalia pointed out in the opinion, regulators have impermissibly asserted Clean Water Act jurisdiction over virtually the entire land area of the United States, whether swamp or arid desert, a circumstance which Justice Scalia indicated has cost Americans over $1.7 billion a year. It is really unconscionable."

Adam Bros. Farming found itself in the middle of federal wetlands litigation when, in 1999, Santa Barbara County declared a portion of the farm's acreage as "federally jurisdictional wetlands." This prevented farming on about 250 acres and resulted in two lawsuits.

One suit was brought by the federal government against Adam Bros. for alleged Clean Water Act violations. The other was brought by Adam Bros. against Santa Barbara County and its staff members for fabricating the existence of wetlands on their parcel.

The county case went to trial first. The jury determined that the Santa Barbara County Planning and Development Depart--ment and some of its personnel fraudulently delineated wetlands where none existed and awarded Adam Bros. $5.6 million in actual and punitive damages. The award is being appealed by the county.

The federal government later settled its case with the farmers for undisclosed sums.

"The land at issue in the Adam Bros. federal case is identical to that which was expressly rejected as federally jurisdictional in Justice Scalia's majority opinion," said Adam. "My only regret is that it didn't come down sooner."

(Christine Souza is a reporter for Ag Alert. She may be contacted at csouza@cfbf.com.)

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