Supreme Court Decision Benefits Property Owners:

Raponos Vs. United States

The following article is a brief analysis of the Supreme Court decision in the Rapanos Wetlands case, which was a significant victory for all property owners. The analysis was written by the attorney AHA hired to write an amicus brief on the Case for the Court, Sebastian Rucci.

The Supreme Court recently shrank the Army Corps wetlands dominion, and once again rejected the broad definition of wetlands used by the Corps. In a splintered ruling, justices said the act had been applied too broadly, but couldn't agree on how to define which water is wetland, or which land is water. Environmental spinsters interpreted the opinion as a win for them, however, Chief Justice Roberts noted differently: the “upshot today is another defeat for the [Corps].”

Five justices agreed to vacate the judgment of the lower court which applied a broad definition of wetlands. The decision composed of three different opinions (a plurality decision). The four conservative justices found the Corps expansive definition unacceptable, and only allow jurisdiction only to navigable waters. The four liberal justices define wetlands based on ecology and allow the Corps to regulate every drop of water. Justice Kennedy argued for an in-between approach requiring the wetland to have a substantial nexus to navigable waters.

The decision is a victory for developers for many reasons. The lead opinion by Justice Scalia concluded that the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] . . oceans, rivers, [and] lakes.” The definition of “wetlands” does not include storm sewers and culverts, sheet flow, drain tiles, or man-made drainage ditches. Jurisdiction is only permitted over wetlands that have a “continuous surface connection” to navigable waters. Wetlands must bear the “significant nexus” of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. The decision is a victory even if the test asserted by the Justice Kennedy is adopted. The substantial nexus test rejects the hydrologic connection test and will require a case by case analysis and require the Corps to show that the wetlands are connected to navigable waters.

The Corps must now seek to adopt a more reasonable wetlands definition. Justice Roberts castigated the Corps for not adopting new rules after their prior loss in the SWANCC case, noting that 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.” Justice Breyer similarly noted that “today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so.”

The next battle will be with the Corps new definition of wetlands. It is important for the local builders to get involved (the Corps will publish the definition and ask for public input) by asking for a very limited definition similar to Justice Scalia’s lead opinion. Many local builders might wrongly dismiss the impact of the recent Supreme Court victory, under the mistaken belief that the County has jurisdiction over all wetlands in the County. The County does not have any such power. They have assumed it and when their jurisdiction is eventually challenged (and restricted to unincorporated areas) the impact of the Courts recent opinion will be truly enjoyed by local home builders. At that time, land will not be interpreted as water, no matter how moist, and the County’s jurisdiction over wetlands will stop at incorporated village boundaries.