For decades, the extent of regulatory authority under the Clean Water Act (CWA) has been the subject of a great deal of litigation. Typically, the litigation involves a challenge to the authority of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) to require a CWA permit, by private parties – chiefly real estate developers and industry groups – seeking to constrain that authority and limit permitting requirements. A November 28, 2017 decision by the Ninth Circuit in the case of United States v. Robertson is the latest – but by no means the last – decision in a long line of cases wrangling over the definition of “waters of the United States” under the CWA.

The ongoing controversy traces its roots to provisions of the CWA that prohibit the discharge of dredged or fill material into “navigable waters” without a permit, and define “navigable waters” as “the waters of the United States….” 33 U.S.C. §§ 1311(A), 1362(7). The Corps initially interpreted these provisions to cover only interstate waters that were “navigable in fact” or could be made so. But after a court determined that the Corps’ regulatory definition was too narrow, in 1977, the Corps responded by passing regulations that extended the definition of “waters of the United States” as far as would be allowed under Congress’s constitutional authority to regulate interstate commerce.

Riverside Bayview Homes and SWANCC

A 1985 Supreme Court case, United States v. Riverside Bayview Homes, unanimously held both that a wetland adjacent to a navigable waterway was within the scope of the Corps’ regulations, and that those regulations were a reasonable interpretation of the CWA. The next year, the Corps attempted again to clarify its jurisdiction by issuing the “Migratory Bird Rule,” a regulation that interpreted “waters of the United States” to include intrastate waters that were used as habitat by migratory birds that crossed state lines or were protected by international treaties. However, in 2001, a divided Supreme Court ruled in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC) that the Corps could not require a CWA permit to fill in an intrastate seasonal pond (and abandoned sand and gravel mine) with no connection to interstate waters merely because of the presence of migratory birds, and that the Migratory Bird Rule was beyond Congress’s authority to regulate interstate commerce.

Rapanos v. United States: Scalia plurality and Kennedy concurrence

The Corps did not amend its regulations following SWANCC. Five years later, the Supreme Court again addressed the Corps’ CWA authority in a divided decision that has engendered both new regulations and countrywide litigation – Rapanos v. United States. In Rapanos, five Justices agreed that the Corps had again exceeded its regulatory authority, but could not agree on a rule to be applied in future cases. A four-Justice plurality (led by the late Justice Scalia) would have held that the CWA’s definitions exclude intermittent or ephemeral streams altogether, and instead included only “relatively permanent, standing or continuously flowing bodies of water” and wetlands that were adjacent to those waters, in that they had a “continuous surface connection” to them. By contrast, Justice Kennedy – writing alone – would have held that wetlands may be jurisdictional if they have a “significant nexus” with navigable waters. Four other justices dissented, and would have upheld Corps jurisdiction over the waters at issue under the then-existing regulations.

Post-Rapanos Litigation and the 2015 WOTUS Rule

The split opinion in Rapanos spawned a flood of litigation over wetlands permitting, with parties disputing whether to apply Kennedy’s “significant nexus” standard or the plurality’s “continuous surface connection” standard. Several federal Courts of Appeals have applied the “significant nexus” standard, while others have sidestepped the question by analyzing the wetland at issue under both standards, often reaching the same result whichever standard is used.

EPA and the Corps attempted to clarify their authority via a joint rulemaking in 2015, issuing what is known as the “Clean Water Rule” or the “Waters of the United States” (“WOTUS”) Rule. That rule applied Justice Kennedy’s “significant nexus” standard, and listed categories of waters that would always fall under CWA jurisdiction, categories of waters that would always be excluded from CWA jurisdiction, and a narrow category of waters where CWA jurisdiction would be addressed on a case-by-case basis.

Naturally, the WOTUS Rule was itself the subject of numerous lawsuits that were consolidated in the Sixth Circuit Court of Appeals and then stayed, leaving the pre-Rapanos definition in place; that status quo held until the Trump Administration’s February 28, 2017 Executive Order directing the agencies to rescind or revise the WOTUS Rule, and to “consider” interpreting “navigable waters” in a manner consistent with the Rapanos plurality opinion. Ironically, EPA and the Corps have begun implementing this order by proposing to re-codify the pre-Rapanos rules, and later propose a new definition. Any new definition will no doubt be the subject of further litigation; and in yet another complication, the Supreme Court recently heard arguments on whether future challenges to this type of rule should be heard first in the Courts of Appeals or in federal district courts.

United States v. Robertson and the Way Forward

Against this convoluted backdrop, on November 28, 2017, the Ninth Circuit case United States v. Robertson upheld criminal convictions of the defendant, Joseph David Robertson, for (among other things) knowingly discharging dredged or fill material from a point source into waters of the U.S. without a permit.

Robertson had excavated and constructed a series of ponds on National Forest System lands and a privately owned mining claim in Montana. In the process, he discharged dredged and fill material into the surrounding wetlands and a tributary of Cataract Creek, which ultimately flows to the Jefferson River, a traditionally navigable water. Robertson was warned by an EPA Special Agent that if he did not have a permit, his actions “very likely” required one; yet he did not get permits to build the ponds or discharge dredged or fill material into waters of the U.S.

As in Rapanos, the case turned on whether Robertson had discharged fill into “navigable waters.” The Ninth Circuit affirmed his conviction, applying earlier Circuit decisions that defined “navigable waters” using Justice Kennedy’s “significant nexus” test. The Court also noted that nearly every post-Rapanos Court of Appeals case has either applied Justice Kennedy’s test, or held that jurisdiction exists if the water meets either Kennedy’s or the plurality’s standards. Ironically, this either/or approach was suggested by Justice Stevens’ dissenting opinion in Rapanos.

This highlights a key issue with the Trump Administration’s current repeal-and-replace efforts: until a new WOTUS Rule is promulgated, the old definition will remain in place, as will the uncertainty over whether and how to apply the plurality’s standard or Justice Kennedy’s test. Robertson had argued unsuccessfully that this uncertainty meant that the plurality’s standard should apply, since it (arguably) would narrow CWA jurisdiction to fewer waters. The Court of Appeals disagreed.

It seems certain that nothing short of a final WOTUS Rule that survives Supreme Court review will stem the tide of litigation over this issue. For the foreseeable future, the CWA’s threat of criminal and civil penalties for unpermitted discharges should keep developers wary of discharging fill into wetlands that arguably could trigger Corps jurisdiction under either standard.