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Cranberry Bog Ruling Adds to Wetlands Jurisdiction Debate
The case of a Massachusetts farmer who filled 50 acres of wetlands to build a cranberry bog has been sent back to a U.S. trial court in Massachusetts, further muddying the waters for home builders after the U.S. Supreme Court’s June decision in the Rapanos and Carabell cases.
In light of the decision on the two high-profile cases, the 1st U.S. Circuit Court of Appeals ruled on Oct. 31 that the district court needs to reconsider its decision that the farmer violated the Clean Water Act when he developed land without an appropriate wetlands permit.
In United States v Johnson, the federal government sued the farmer, contending that the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) had jurisdiction over his land because it abuts a stream that eventually flows into navigable waters of the U.S. Previously, the circuit court found that the land was under federal jurisdiction.
Last week, mirroring an argument made by NAHB in an amicus brief, the court vacated that earlier decision and ruled that more facts are needed to determine if federal jurisdiction is appropriate because questions of whether the land was next to a permanent body of continuously flowing water — Supreme Court Justice Antonin Scalia’s test for jurisdiction — or whether the stream had a “significant nexus” to navigable waters — Justice Anthony Kennedy’s test — had not been answered.
The court also agreed with NAHB that just because two bodies of water are somehow connected does not make that connection a significant nexus.
Judicial Questions Swirling
However, this latest ruling continues to leave jurisdictional questions swirling, said Duane Desiderio, NAHB’s staff vice president for legal affairs, and in the meantime, the EPA continues to drag its feet on clarifying where it has wetlands jurisdiction, leaving many builders and developers in limbo as local regulators await word from the federal regulators.
“There is now a very clear split in the circuit courts on which test governs,” Desiderio said. “The 1st Court now says that both Scalia and Kennedy’s opinions must be considered. The 7th and 9th Circuits have ruled that Kennedy’s ‘significant nexus’ case controls, while a trial court in Texas has ruled that Scalia controls.”
Even in the Johnson case, the three-member circuit court was not unanimous, with a dissenting opinion from Judge Juan Torruella “throwing another potential monkey wrench into the pot,” Desiderio said. Scalia’s narrow test of what is covered under the Clean Water Act — wetlands next to a relatively permanent body of water and that is also continuously connected to navigable waters — “strikes a constitutional balance between federal and state regulatory interests, and our nation’s interest in clean water and the individual land owner’s right to manage their property in accordance with their dreams and aspirations, whether economic or otherwise,” Torruella said.
The good news is that the accumulating judicial opinions are moving the regulators away from the old, widely-accepted “hydrological connection test” they used as a basis for asserting jurisdiction over a piece of land.
Builders Want to Know the Rules
“To most builders, this must seem like a painfully slow process, with a lot of wrangling over obscure wording and definitions,” Desiderio said. “But what our members need to take away from this series of cases is that the test for determining what makes a piece of land jurisdictional under the Clean Water Act is eventually going to become clearer. That’s what we’re working toward. Builders want to know what the rules are and they want to see them consistently applied. It’s hard to see right now, but this case moves the ball that much forward.”
Vincent Mosca, a senior ecologist with Hey and Associates Inc. in Volo, Ill., said that he is looking forward to clearer direction from regulators. His firm was involved in one exceptional case where wetlands on one side of a fence row were considered jurisdictional under the Clean Water Act and the land on the other side was not.
“Rapanos, Scalia, Kennedy — these aren’t daily words in our mouths. We’re looking at what the maps show, what the U.S. [Geological Survey] says, we look at the way things have been done and that generally guides what happens around here, but there’s uncertainty on all sides, and that makes it ripe for indecision,” Mosca said. “We are curious as to what kind of guidance will come down from on high,” he said, but “as long as it’s consistent and verifiable, we don’t care.”
“My clients are trying to get us to tell us what to do and what the rules are — I would be glad to see some resolution of these matters coming down,” said James A. Schmid of Schmidt & Co., consulting ecologists in Media, Pa. “There is uncertainty given the Supreme Court’s ruling,” because it is hard to decide on what constitutes a significant nexus, he said. “Once there are enough cases that establish this, and the rules are clear, then everybody will proceed accordingly.”
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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