In Rapanos v. United States, the Supreme Court addressed the issue of federal wetlands jurisdiction under the Clean Water Act. The Court's fractionalized opinion left lower courts searching for the appropriate analysis to determine Army Corps of Engineers jurisdiction over wetlands. In addition, the opinion left unclear the proper role that science should play in addressing the jurisdictional inquiry. Since Rapanos is a complex decision, and because South Dakota has numerous wetland areas that intersect with ranching, farming, and development, it is important for the South Dakota legal community to stay current with new developments in wetlands jurisdiction. One such new development is the 2011 Corps and Environmental Protection Agency Joint "Draft Guidance on Identifying Waters Protected by the Clean Water Act." The Draft Guidance and federal appellate court cases decided under Rapanos indicate that science plays a crucial role in assessing wetlands jurisdiction. Practitioners must be aware that evidence of scientific parameters, or lack thereof can have a major effect on the outcome of a given case. Clever litigators can use the Draft Guidance as a manual to discern appropriate types of evidence that can be used in determining jurisdictional claims under the Rapanos tests.
In the same manner that the antagonist in a superhero film produces mayhem as the plot of the movie unfolds, so too has the United States Supreme Court's decision in Rapanos v. United States (1) created chaos in federal wetlands jurisdiction cases across the country. (2) While the storyline of such a film comes to denouement and the audience traipses away, thrilling at the thought of the villain defeated, such resolution in the Rapanos saga is not possible--the plot continues to unfold as the legal community attempts to parse through the rubble. (3)
In Rapanos, three disjunct (4) portions of the opinion attempted to define the appropriate test to determine whether the Army Corps of Engineers ("Corps") should have jurisdiction over wetlands found next to non-navigable tributaries of navigable waters under the Clean Water Act ("CWA"). (5) The plurality and concurring portions of the opinion directed that the case be remanded, but offered different tests to analyze federal jurisdiction. (6) First, the plurality, written by Justice Scalia, determined that there must be a "surface connection" between the wetland at issue and the navigable water for the Corps to claim jurisdiction. (7) The plurality downplayed the role that science and ecology should play in determining Corps jurisdiction over wetlands. (8) Alternatively, Justice Kennedy's concurrence posited that the appropriate test should be whether a "significant nexus" exists between the wetland in question and the navigable water; if so, the Corps could claim jurisdiction. (9) In contrast to the plurality, Kennedy's concurrence acknowledged scientific factors as an important part of the CWA, (10) and verbalized those factors as part of the significant nexus test. (11) Finally, the dissent, authored by Justice Stevens, argued that the lower courts' decisions to grant jurisdiction to the Corps should be affirmed. (12) Justice Stevens asserted that lower courts should make use of either the plurality or the Kennedy test to determine jurisdiction in future cases. (13)
Under this framework, federal appellate courts have largely been left to their own devices to puzzle out how the jurisdictional inquiry should proceed, resulting in inconsistency among court decisions. (14) For example, federal appellate decisions have split with regard to which test should be used to determine Corps jurisdiction over wetlands. (15) An additional misunderstanding has emerged with regard to the proper role of science in the jurisdictional analysis--while it is apparent that federal appellate courts expect that scientific evidence be used in proving jurisdiction under Rapanos, many cases demonstrate that litigators simply have not cued into this expectation. …