An odd post Rapanos case


Author:  Damien M. Schiff

In a decision issued late last month, Judge Flanagan of the Eastern District of North Carolina ruled in United States v. Freedman Farms, Inc., that the EPA and the Army Corps of Engineers can establish Clean Water Act jurisdiction over a site's wetlands if the agencies can show that the absence of pollutants in the downstream water that are found on the site is significant to the downstream water's physical, chemical, and biological integrity.  Recall that Justice Kennedy in his concurring opinion in Rapanos v. United States held that Clean Water Act jurisdiction extends to those wetlands that have a "significant nexus" with downstream, traditional navigable-in-fact waterbodies.  In his concurrence, Justice Kennedy observed that a hydrological connection is neither a sufficient, nor even a necessary, condition to jurisdiction.

I have always believed that that latter position—preserving the lack of connection makes jurisdiction—to be nonsensical.  After all, it means that the federal government has control over wetlands precisely because they do not affect waters over which the government does have authority.  The more reasonable approach, in my view, would be to hold that jurisdiction attaches to such nonconnected wetlands only at the point that the barrier is broken and the nexus is created.  Until that point, the government's jurisdiction is really only potential, not actual.

But I give credit to Judge Flanagan for faithfully interpreting Justice Kennedy's opinion and taking it to its logical conclusion.  But in doing so, the de facto scope of the federal government's powers under the Clean Water Act continues to expand, in obvious tension with a majority of the Justices of the Supreme Court, who in Rapanos held that the government's already expansive notion of its own power was not supportable under the Act.