District courts for the Northern District of California and the District of Connecticut recently applied the Supreme Court’s 2006 Rapanos decision to decide whether certain intermittent and ephemeral streams and adjacent wetlands were subject to Clean Water Act regulatory jurisdiction. (Please click for further discussion of Rapanos). In both instances, the courts found that plaintiffs had not presented sufficient evidence that the streams or wetlands in question had a significant effect on downstream navigable waters.
In Simsbury-Avon Preservation Society, LLC et al. v. Metacon Gun Club, Inc., (__ F.Supp.2d __; 2007 WL 268341 (D. Conn. January 31, 2007), the court considered whether the defendant had violated section 402 of the Clean Water Act, which regulates the discharge of pollutants into jurisdictional navigable waters through issuance of discharge permits (known as NPDES permits). Plaintiffs offered evidence that the gun club flooded periodically during average-to-large rain events and snow melts. Flood flows from the club reached a wetland area to the north of the club, eventually flowing overland into an inlet or cove immediately adjacent to the Farmington River, a navigable-in-fact waterway. On the basis of this hydrologic connection, plaintiffs alleged that the northern wetland was jurisdictional, and that lead-bearing run off from the gun club impermissibly discharged into the adjacent northern wetland without a NPDES permit.
Defendant moved for summary judgment, arguing that under Rapanos, the northern wetland was not subject to regulatory jurisdiction as an adjacent wetland. The court first discussed differing Circuit authority regarding how to apply the Rapanos decision to questions of Clean Water Act jurisdiction. The court observed that the Ninth and Seventh Circuits apply the standard in Justice Kennedy’s concurring opinion, that to be jurisdictional, non-navigable adjacent waters must have some significance to the water quality of downstream, jurisdictional navigable-in-fact waters. The First Circuit, however, has fashioned a “common-sense approach” whereby courts must find common ground shared between opinions joined by five or more justices.
Being within the First Circuit, the court sought common ground amongst the justices by first applying the standard set out in Justice Scalia’s plurality opinion: to be jurisdictional, non?navigable waters must have a continuous surface connection to navigable?in?fact waters, in this case the Farmington River. Under the plurality opinion in Rapanos, such a connection required that there be no clear demarcation between waters and wetlands. The court found that plaintiffs’ evidence of periodic flooding during average to large rain events was insufficient to meet Justice Scalia’s standard of a continuous connection, which.
Turning to Justice Kennedy’s standard, the court found that even if there was a periodic physical nexus with the Farmington River, the plaintiffs offered inconclusive evidence regarding whether the pollutant-bearing flood flows that reached the river had a significant effect on its water quality in the form of lead contamination. Thus, the court concluded under the Kennedy standard that the wetland had only a speculative or insignificant effect on the Farmington River, and was therefore not jurisdictional. Finding the requisite “common ground” between five justices (Justice Kennedy and the four concurring in Justice Scalia’s plurality opinion), the court granted defendant’s motion for summary judgment that flows from the gun club were not subject section 402 because they had not discharged into waters considered to be jurisdictional.
In Environmental Protection Information Center v. Pacific Lumber Company (__ F.Supp.2d __; 2007 WL 43654 (N.D. Cal. January 8, 2007), the court considered whether defendant lumber company had violated Section 301 of the Clean Water Act, which regulates point source discharges of pollutants to navigable waters. The defendant had collected sediment-bearing storm water runoff within road-side ditches and culverts, which discharged over land into small, mainly intermittent and ephemeral streams.
On plaintiff’s motion for summary judgment, the court followed Ninth Circuit jurisprudence and applied Justice Kennedy’s standard (after acknowledging the First Circuit’s differing authority discussed by the Metacon court, above). The court agreed that plaintiffs had shown some degree of hydrologic connection between the streams in question and downstream navigable-in-fact waters based on information in Global Information System maps. But, the court held that a hydrologic connection alone “[would] not comport with the Rapanos standard in this case.” Finding that plaintiffs failed to offer any evidence that the streams in question met Justice Kennedy’ standard – having some significance for the water quality of downstream navigable-in-fact waters – the court denied plaintiff’s motion because plaintiffs had not demonstrated that the streams were jurisdictional.
The court did not offer examples of evidence that might satisfy Justice Kennedy’s standard, but noted that a previous Ninth Circuit panel had considered both evidence of a hydrologic connection and an “ecological connection” to navigable?in?fact waters in upholding Clean Water Act jurisdiction. (See Northern Cal. River Watch v. City of Healdsburg, No. 01-04686, 2004 WL 201502 (N.D.Cal. Jan. 23, 2004) (Alsup, J.), aff’d, 457 F.3d 1023 (9th Cir.2006).) The court disagreed with the defendant’s argument that Justice Kennedy’s standard requires evidence of flow of a pollutant along the stream and into navigable-in-fact waters, stating this requirement was akin to Justice Scalia’s standard.
These cases are two in a handful of decisions that have addressed questions of federal regulatory jurisdiction by applying the Supreme Court’s decision on that subject in Rapanos v. United States and its companion, Carabell v. United States Army Corps of Engineers. Until the Army Corps of Engineers releases its national guidance on applying the Rapanos decisions to determinations of Clean Water Act regulatory jurisdiction, widely expected in the first half of 2007, these cases provide the best available guidance on jurisdictional determinations in difficult circumstances such as adjacent wetlands and intermittent stream connections.
For further information please contact Robert Uram and Aaron Foxworthy. Robert Uram is a member of the Real Estate, Land Use, and Environmental Practice Group in the firm’s San Francisco Office. Aaron Foxworthy is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco Office.