Federal Wetland Regulation — Part 1 — the Nexus must be significant


A very divided U.S. Supreme Court made the 2006 Rapanos decision regarding federal jurisdiction over wetlands. Four Justices, led by Justice Scalia, held that the federal government only had jurisdiction over wetlands where there was a regular presence of water, and where one cannot tell where the wetlands ended and a navigable waterway began.

Four other justices, led by Justice Stevens, were content to find jurisdiction even if the only connection between a navigable waterway and the wetlands was subterranean. The last Justice, Kennedy, agreed with Scalia that there was no jurisdiction in the Rapanos case, but applied his own test — that there could be jurisdiction when there was a “significant nexus” between the wetlands and a navigable waterway. In 2008, the federal government issued guidance, which largely implemented Justice Kennedy’s position as the rule of law.

Earlier this year, after a string of victories by the Army Corps of Engineers and the EPA, the 4th Circuit Court of Appeals handed the Corps its first reported loss since the 2006 Rapanos decision.

The parties agreed that Justice Kennedy’s “significant nexus” test governed (a point with which I do not agree) but the Fourth Circuit held that this test required evidence of both a nexus and its significance to be presented.

While the Corps had measured water storage capacity and the resulting potential flow rates, there was no evidence about how often this capacity actually prevented flooding. Because the wetlands were approximately 7 miles from any navigable water, the Court held that recitation of the adjacent tributary’s flow was sufficient. There was no testimony in this case regarding the river’s flooding, sedimentation, nitrogen levels, or water storage. Without such evidence, the Court held that the Corps had documented that a nexus existed, but the Corps hadn’t documented its significance. In my view, this is much closer to the correct approach than the 2008 Corps/EPA guidance.

Interestingly, a new Fourth Circuit case was recently filed week challenging the EPA’s assertion of federal jurisdiction over farmers who were ditching their fields and placing wood chips on them with the knowledge and consent of the Corps!

The Federal Government appears to be trying to undo the Rapanos limits on federal jurisdiction by new guidance or regulation. I’ll be blogging about this in part 2.