Freshwater Wetlands - Hydro-Environmental Analysis: Freshwater Environments - page 524

becoming housing subdivisions with names such as “Mar Bella” and “Tuscan Lakes” and went on
to state that if the Corps' Galveston district's “interpretation was in place in Florida, most of the
Everglades would be considered isolated and subject to illing.”
Riverside Bayview Homes conirmed the Corps' jurisdiction on wetlands adjacent to navigable
waters, while SWANCC indicated that the Corps had no jurisdiction over isolated wetlands, at least
using the Migratory Bird Rule (Gardner 2011). But, what about other wetlands, such as those adjacent
to tributaries to navigable waters (Gardner 2011)? The issue then became one of determining what a
“signiicant nexus” was in order to establish protection under the CWA (Downing et al. 2003).
19.5.1.3.3 Rapanos v. United States
Enter John Rapanos (with his wife and several wholly owned companies) who wanted to construct
a shopping center near Midland, Michigan, on a site that was adjacent to tributaries that eventually
entered into navigable waterways that were from 11 to 20 miles away. The Michigan Department
of Natural Resources told Mr. Rapanos that he would need a permit to ill wetlands on the prop-
erty. Mr. Rapanos then hired an environmental consultant who reported the same, concluding that
48-58 acres of the site were wetlands. “Rapanos threatened to 'destroy' Dr. Goff if he did not
destroy the wetland report, and refused to pay Dr. Goff unless and until he complied” (records of
John A. Rapanos, et ux., et al. v. United States , June Carabell et al. v. United States Army Corps
of Engineers et al. , Supreme Court of the United States argued February 21, 2006, decided June
19, 2006). Both civil and criminal charges were brought, and in the criminal trial he was found
guilty of violating the CWA. The civil trial eventually went to the U.S. Supreme Court (records of
John A. Rapanos, et ux., et al. v. United States , June Carabell et al. v. United States Army Corps
of Engineers et al. , Supreme Court of the United States argued February 21, 2006, decided June 19,
2006; see USEPA Region 5 [2006] for a summary).
In this case, the court (June 19, 2006 decision) was split 4-1-4, with Justice Kennedy, unlike in
SWANCC , failing to break the tie. It was his opinion, with which the other justices apparently did not
agree, that the appropriate implementation of the intent of Congress in the formulation of the CWA
was to require a “signiicant nexus” of the wetlands to traditional navigable waters (TNWs). He further
stated that the “nexus required must be assessed in terms of the Act's goals and purposes.” Congress
enacted the law to “restore and maintain the chemical, physical, and biological integrity of the Nation's
waters,” and it pursued that objective by restricting dumping and illing in “waters of the United States.”
The result of the lack of a decision was to not provide precise guidance to the lower courts or
agencies on how to clearly interpret wetland protection under the CWA. As indicated by Gardner
(2011), one option for concise guidance would have been to limit federal protection to only tradi-
tional navigable waterways, but that option was rejected by Justice Kennedy and four dissenters in
Rapanos . Another option was to deine the nexus as being a hydrological connection to a navigable
water, but that too was rejected by Justice Kennedy and the other four dissenters. Strangely, while
there was no majority opinion, it was the single opinion of Justice Kennedy that had the greatest
inluence on subsequent wetland protection (Gardner 2011). The impact of lack of a decision is illus-
trated by the 2006 article (Beardsley 2006) in Scientiic American titled The End of the Everglades?
Supreme Court Case Jeopardizes 90 percent of U.S. Wetlands .
19.5.1.4 So What Are “Waters of the United States” as They Apply to Wetlands Now?
In the absence of a clear legal deinition of wetlands protected by the CWA, agencies proposed what
they could provide “fuzzy and ambiguous guidance.” That guidance is then “subject to interpretation,”
meaning that individual agencies or organizations, or even districts within the Corps and ultimately
the courts may interpret it differently. The proposed new guidance was posted by the U.S. EPA and
the Corps in the Federal Register on May 2, 2011, after which it received about 230,000 public com-
ments. In the proposed new guidance, wetlands are basically divided into three areas (see Table 19.2).
The agencies are still working on the inal rulemaking (as of May 2012) “and the saga (and con-
fusion) continues.”