Applying Rapanos in Cundiff:

In United States v. Cuniff, the U.S. Court of Appeals for the Sixth Circuit rejected a landowner challenge to federal jurisdiction. At issue was the scope of federal regulation under the Clean Water Act over privately owned wetlands after Rapanos v. United States. Assuming the Cuniff opinion paints an accurate picture of the relevant details, and the extent of the ecological connection between the relevant wetlands and local waters, the court may have been correct to rule against the landowners. But the Court's discussion of jurisdiction unnecessarily complicated the relevant analysis, suggesting (as have other courts) that there are multiple paths for asserting jurisdiction post-Rapanos.

In Rapanos, the Supreme Court split 4-1-4 over the proper test for determining when wetlands adjacent to tributaries could constitute “waters of the United States” subject to federal control. Justice Scalia’s four-justice majority adopted a narrow definition of “waters of the United States” that requires a relatively continuous flow of surface water to establish that a wetland is subject to regulation. Justice Kennedy adopted a more expansive view, holding that the Clean Water Act extends to any waters or wetlands with a “significant nexus” to navigable waters. The four dissenters adopted an even more expansive view of federal jurisdiction, completely deferring to any federal agency determination, and suggesting that lower courts could find jurisdiction if either the Scalia or Kennedy standard is met. This suggestion, noted in Cuniff and other cases, would suggest there are wetlands that would fail Justice Kennedy's "significant nexus" test, but somehow satisfy the other eight justices. I think this is wrong.

Cuniff dodged the issue in one respect, as it found that jurisdiction could be established under either the Scalia-plurality or Kennedy test. My point is that if Rapanos is read properly, the additional analysis was unnecessary. Only the Kennedy test is controlling as there is no reason to believe there are any wetlands that would meet the Scalia-plurality test for jurisdiction without also meeting the Kennedy test. This is a point the Scalia plurality made explicit, explaining that “relatively continuous flow is a necessary condition for qualification as a ‘water’ not an adequate condition.” (emphasis in original). Thus, even with a relatively continuous flow, additional indicia of a significant hydrological connection could be required for jurisdiction, and such indicia would almost certainly satisfy the relatively flexible test articulated by Justice Kennedy. Alternatively, were there to be a wetland connected to a navigable-in-fact water by a “relatively continuous flow” of water that is so inconsequential as to fail Justice Kennedy’s “significant nexus” test, there is little reason to think it would satisfy that of the Scalia plurality. [For more on my assessment of Rapanos, see here and here.]

In these sorts of cases I think lower courts should focus exclusively on the “significant nexus” requirement as articulated by Justice Kennedy. This may be time consuming, but it is the proper way to apply Rapanos. If courts (and others) want a clearer jurisdictional test than Justice Kennedy’s opinion provides, the U.S. Army Corps of Engineers and Environmental Protection Agency will have to refine its regulations to clarify its interpretation of the scope of “waters of the United States.” Such a rule-making is long overdue.

UPDATE: Speaking of Rapanos, here's an op-ed by PLF attorney Reed Hopper on John Rapanos' settlement of his case with the government.