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Preponderance of Courts of Appeal Find Significant Nexus Is the Controlling Rule of the Rapanos Case for Identifying Waters of the United States

02.01.2008

By Larry Kane, Attorney, Bingham Greenebaum Doll LLP

When the scope of “waters of the United States” was addressed in Rapanos v. United States, ____ U.S. ____, 126 S.Ct. 2208 (2006), by a rather fractured Supreme Court, considerable commentary followed opining on whether the plurality opinion of Justice Scalia or the tie-breaking, concurring opinion of Justice Kennedy defined the ultimate rule of law flowing from the decision. To review briefly, the specific issue was the minimal requisite nature of a waterway adjacent to a wetlands that would pull the wetlands into the rubric of “waters of the United States” under previous Supreme Court decisions. Justice Scalia’s opinion found that “navigable waters” (or waters of the U.S.) included only “relatively permanent, standing or continuously flowing bodies of water forming `geographic features’ that are described in ordinary parlance as `streams . . . oceans, rivers, [and] lakes.” Id., 126 S.Ct. at 2225. The Scalia opinion also stated that, while “relatively continuous flow is a necessary condition for qualification as a `water’,” relatively continuous flow was “not an adequate condition.” Id., 126 S.Ct. at 2223.

A further element of the Scalia plurality was that “only those wetlands with a continuous surface connection to waters of the U.S. will be considered “adjacent to” such waters and thus included within waters of the U.S. Id., 126 S.Ct. at 2226. Justice Kennedy, on the other hand, propounded a “significant nexus” test to determine whether a waterway or wetland is included within waters of the U.S. Only a waterway or wetland that possessed a significant nexus to waters that are navigable in fact are considered waters of the U.S. In conjunction with this test, Justice Kennedy opined that a “mere hydrologic connection” between a wetland and a navigable-in-fact water would not necessarily be sufficient to demonstrate a significant nexus. Id., 126 S.Ct. at 2248.

With the recent decision of United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), three federal judicial circuits (the 7th, 9th and 11th) have now found Justice Kennedy’s concurring opinion to set the controlling rule of law in Rapanos, while only one circuit (the 1st) has aligned with the Scalia plurality opinion. The Seventh Circuit had previously endorsed Justice Kennedy’s opinion as controlling in United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006), cert. denied, ____ U.S. _____, 76 U.S.L.W. 3156 (U.S. Oct. 1, 2007). In reaching its decision in Gerke, the Seventh Circuit relied upon Marks v. United States, 430 U.S. 188, 97 S.Ct. 990 (1997). The RobisonCourt overturned criminal convictions resulting from alleged illegal discharges by an NPDES permitted facility into a small creek because the jury instruction given on the nature of “navigable waters” was considered in error for not including a discussion of the significant nexus test.

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