By Diane G. Kindermann and Daniel S. Cucchi
In his Executive Order, President Trump directs the EPA and USACE to clarify the 2015 Waters of the United States (“WOTUS”) Rule and in doing so, to take into consideration Justice Scalia’s 2006 Supreme Court opinion in Rapanos v. United States, 547 U.S. 715 (2006).
In Rapanos, Justice Scalia opined that a wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection. From Rapanos, 547 U.S. at 741-42:
Riverside Bayview rested upon the inherent ambiguity in defining where water ends and abutting ("adjacent") wetlands begin, permitting the Corps’ reliance on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters. Isolated ponds were not "waters of the United States" in their own right,… and presented no boundary-drawing problem that would have justified the invocation of ecological factors to treat them as such….
Therefore, only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands, are "adjacent to" such waters and covered by the Act.…
Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: first, that the adjacent channel contains a "wate[r] of the United States," (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the "water" ends and the "wetland" begins.
Diane G. Kindermann is a shareholder and Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.