The NYT on SCOTUS’s Wetlands Decision

Thom Lambert —  20 June 2006

Yesterday, the U.S. Supreme Court issued a fractured decision in consolidated appeals raising the issue of which wetlands come within the ambit of the federal Clean Water Act (“CWA�). The wetlands at issue were next to drainage ditches that, when full of water, would eventually flow into navigable waters. The record did not establish whether the connections between the wetlands and the drainage ditches were continuous or intermittent, or whether the ditches contained continuous or merely occasional flows of water.

Deeming those missing facts irrelevant, the Army Corps of Engineers (the agency the CWA charges with granting “dredge and fill permits� for wetlands) determined that the wetlands were within the scope of the CWA. A five-justice majority found that determination to be hasty and voted to remand the cases for further consideration of whether the wetlands at issue were within the CWA’s reach. The five justices disagreed, though, on the proper standard to apply. Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, articulated one test; Justice Kennedy set forth a less stringent test (which the lower court will presumably apply on remand).

The New York Times is unhappy with the Court’s judgment but insists that “it could have been much worse� if Justice Scalia had garnered a fifth vote in favor of his “very restricted view of the Clean Water Act.� The Times insists that Justice Scalia’s test for what constitutes a covered wetland is “largely invented�; that the views of the Scalia-led plurality amount to “judicial activism�; and that Justice Kennedy’s alternative test, presented in a “careful opinion,� is laudably “moderate.�

The Times is wrong on all these points.

Scalia’s Test

Not surprisingly, Justice Scalia’s test for covered wetlands sticks closely to the text of the CWA. The relevant part of that statute prohibits, absent a permit, “the discharge of any pollutant by any person.� “Discharge of a pollutant� is defined as “any addition of any pollutant to navigable waters from any point source.� The term “navigable waters� is defined as “the waters of the United States, including the territorial seas.� The key legal question, then, is which wetlands are “navigable waters� under this definition.

Now, one might initially think that no wetland could constitute a “navigable water,� since it’s generally impossible to drive a boat through a wetland. That argument’s a non-starter, for “navigable waters� is a defined term: “the waters of the United States.� Even Justice Scalia recognizes that wetlands can come within the CWA’s reach when they are “the waters of the United States.�

So what are “the waters of the United States�? As Justice Scalia notes, they do not include all the drops of water in America: “The use of the definite article (‘the’) and the plural number (‘waters’) show plainly that [the definition of navigable waters] does not refer to water in general.� Instead, the term refers (consistent with its dictionary definition) to “continuously present, fixed bodies of water,� not “transitory puddles or ephemeral flows of water� or “ordinarily dry channels through which water occasionally or intermittently flows.�

But this does not mean that wetlands can never be part of “the waters of the United Statesâ€? (and thereby covered by the CWA). In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court concluded that wetlands abutting a non-transitory, navigable waterway do come within the Act. That’s because, with wetlands adjoining a navigable water, it’s nearly impossible to tell where the navigable waterbody ends and the wetlands begin. The surface connection thus renders the wetland part of the navigable waterway and brings it within the CWA. By contrast, isolated, nonnavigable, intrastate waters are not themselves “waters of the United States,â€? do not present the line-drawing problem applicable to abutting wetlands, and therefore are not within the CWA’s reach. That was the holding of the Supreme Court’s decision in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001) (hereinafter “SWANCCâ€?).

The cases decided yesterday involved wetlands that were not themselves “the waters of the United States� (because they were ephemeral and transitory), nor did they abut any such waters (so that line-drawing would be impossible). Their only connection to “the waters of the United States� was that they were near a ditch that may or may not have contained a continuous flow into waters of the United States. As noted, the record did not show (1) that the wetlands at issue were continuously connected to the ditches at issue, or (2) that the ditches contained continuous flows into permanent waters. Remand was therefore appropriate.

Consistent with the dictionary definition of “the waters of the United States� and the Court’s precedents defining such waters, Justice Scalia would have required the Corps to show:

First, that the adjacent channel contains a “water[] of the United States” (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins.

Given that Justice Scalia’s test for what constitutes a covered wetland is based squarely on the text of the statute and the Court’s precedents defining “the waters of the United States,� the NYT’s claim that the test is “largely invented� is just wrong.

Conservative Activism?

So is the assertion that the Scalia-led plurality was engaged in judicial activism. The Times’ charge here is that reining in the Army Corps of Engineers amounted to a usurpation of policymaking authority best left to the political branches:

For all the talk of liberal judicial activists, it was Justice Antonin Scalia and his fellow conservatives who voted to substitute their own preferences for a decision made by the executive branch, in the form of the Army Corps, interpreting a statute passed by Congress. It was the liberals who were “judicially modest,” to use a favorite phrase of Chief Justice Roberts, deferring to the elected branches.

Is the Times suggesting that any decision by the Court that the Executive Branch has misinterpreted a statute constitutes “judicial activism�? C’mon guys. When an agency adopts an incorrect interpretation of an unambiguous statute, it’s not “activist� for the Court to insist on fidelity to the text Congress enacted.

That’s exactly what happened here. The Corps’ current regulations define “the waters of the United States� to include (inter alia) intrastate mudflats, sandflats, wetlands, prairie potholes, and wet meadows, as long as “the use, degradation, or destruction of [such intrastate ‘waters’] could affect interstate or foreign commerce.� Also included are wetlands adjacent to any such “waters,� including those “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.�

Under the Supreme Court’s 2001 SWANCC decision, that definition is, without doubt, overly broad. While SWANCC held that a mere connection to interstate commerce was not enough to bring a non-navigable, isolated, intrastate waterway within the purview of the CWA, the Corps’ current regulations attempt to do just that. The Corps is, in short, flouting the Supreme Court. And it’s well-aware of that fact. As Chief Justice Roberts noted in his concurrence, the Corps initiated a rule-making to revise its regulations following SWANCC, but it eventually abandoned those efforts, deciding to leave its invalid rules on the books.

It’s hardly “activism� for the Supreme Court to insist that the Corps live within the jurisdictional limits set by Congress – especially after the Corps has already been reminded of, but has chosen to ignore, those limits.

Justice Kennedy’s “Moderation�

So what about Justice Kennedy’s “moderate� test, set forth in “a careful opinion, much in the tradition of Justice Sandra Day O’Connor�? In that opinion, which will likely be followed on remand, Justice Kennedy stated that the proper test for wetlands such as those at issue is whether they possess a “significant nexus� to waters that are navigable in fact or that could reasonably be so made. To make that determination, the Corps should consider, “on a case-by-case basis� whether the wetlands adjacent to non-navigable tributaries “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’�

Putting aside that it offers planners almost no guidance and would seem to give the Corps almost limitless discretion in determining which wetlands to regulate, this neat little test has absolutely no connection at all to the text of the CWA. The statute itself never mentions a “significant nexus� to anything, and Congress certainly could have legislated in such terms had it so desired. Thus, Justice Kennedy has essentially written his own definition of “navigable water.�

For this reason, his opinion is the least moderate of the bunch. At least the dissenters would have just deferred to the definition adopted by the Army Corps of Engineers. That seems significantly more moderate than creating a definition out of thin air.

Thom Lambert


I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.