The Alaska Contractor: Fall 2006

PACIFIC LEGAL FOUNDATION
By M. REED HOPPER
Principal Attorney
A decision, but not an answer
Like so many government agencies, the Army Corps of
Engineers never seems satisfi ed with the level of its
powers. Corps offi cials have consistently pushed the
very limits of federal authority under the Clean Water Act.
Fortunately, for all who advocate regulatory constraint, the
United States Supreme Court recently declared that there
are statutory bounds to the reach of this agency. Unfortunately,
this was said with a certain lack of clarity.
The case, United States v. Rapanos, was decided with
an unusual, but not unprecedented, 4-1-4 split. Four of the
Justices saw no reason why the Corps should not continue
to regulate virtually any land over which water may fl ow.
Four other Justices, including the Court’s most recent additions,
Chief Justice Roberts and Justice Alito, urged a more
constrained, and constitutionally consistent reading of the
Corps’ powers under the Clean Water Act. According to
these Justices, the Corps may only regulate those wetlands
that abut and are indistinguishable from relatively permanent
wetlands such as rivers, lakes, and streams that are
themselves connected to navigable waters.
While concurring that the Corps had overstepped its
bounds with respect to Mr. Rapanos’ case, Justice Kennedy
presented his own view of when Corps jurisdiction exists. At
the core of Justice Kennedy’s opinion is the requirement that
the Corps “must establish a signifi cant nexus [between the
wetland and traditional navigable waters] on a case-by-case
basis when it seeks to regulate wetlands based on adjacency
to nonnavigable tributaries.”
While the Rapanos decision is clearly a victory because
the Corps can no longer demand permits for property with
insignifi cant connections to navigable waters, this was not
the clear answer we hoped would avoid the need for future
litigation.
72 The Alaska CONTRACTOR Fall 2006