(July 20, 2006) In an effort to determine the scope of the federal Clean Water Act as it applies to an estimated 300 million acres of wetlands, the U.S. Supreme Court in June set some general limits on the federal government’s power, but failed to reach a majority opinion.

The decision split the court 4-1-4, with swing Justice Anthony Kennedy holding the middle ground between the court’s conservative and liberal camps.

‘Waters of the United States’

The pivotal question being considered was how the nation’s wetlands fall under jurisdiction of the Clean Water Act, which gives federal regulators — the Army Corps of Engineers (the Corps) — authority over the “waters of the United States.”

Earlier court cases already had concluded that “waters of the United States” gives federal authorities jurisdiction over wetlands adjacent to navigable, open bodies of water, but it is less clear whether their reach extends to wetlands adjacent to non-navigable waters.

Divergent Opinions

The plurality opinion given by Justice Antonin Scalia offered a narrow interpretation of the law and argued for overturning the earlier courts’ rulings because the act should apply only to “relatively permanent, standing or flowing bodies
of water” with surface connections to navigable waterways.

Justice John Paul Stevens gave the opposite opinion, arguing that the extensive authority claimed by the Corps was
supported by 30 years of environmental regulation that has helped to protect the quality of the nation’s water.

Justice Kennedy sided with Scalia on overturning the lower courts’ rulings, but said that slightly reining in federal authority over such wetlands would be the best solution.

‘Significant Nexus’

Justice Kennedy concluded that important public interests are served in protecting wetlands, but said the Corps had an overly broad standard for claiming jurisdiction over wetlands adjacent to non-navigable waters.

Kennedy stated that the Corps, in order to have jurisdiction, must show a “significant nexus” exists between the wetlands and navigable waters, which would be true if the wetlands affected “the chemical, physical and biological integrity” of waters already covered by the Clean Water Act.

Because no opinion represented a majority of the justices on the bench, Justice Kennedy’s “significant nexus” test will be the standard used by the lower courts when reassessing pending cases.

Chamber Position

The California Chamber of Commerce believes that the federal government has overextended its authority by regulating wetlands not adjacent or significantly connected to a navigable water of the United States. Private property rights have been unduly restricted with no appreciable benefit to the environment at the expense of landowners.

Staff Contact: Valerie Nera