By Diane Kindermann Henderson and Elias E. Guzman

Two weeks after the United States Supreme Court rendered its opinion in Rapanos/Carabell, et al. v. United States (2006) 126 S.Ct. 2208, the United States District Court for the Northern District of Texas delivered an opinion in United States v. Chevron Pipe Line Co. (D. Tex. June 28, 2006) 2006 U.S. Dist. LEXIS 47210. The court in Chevron was the first federal district court to apply the Army Corps of Engineers’ jurisdictional authority standards enunciated in Rapanos. In granting summary judgment, the Chevron court opined that the connection of generally dry channels and creek beds does not create a “significant nexus” to a navigable water simply because one fed into the next during the rare times of actual flow.

Before the Supreme Court issued its opinion in Rapanos, many believed the Court would finally clarify the authority of the Corps under the Clean Water Act (“CWA”) regarding isolated wetlands. The sharply divided Court, which split 4-1-4, rendered three opinions (two concurring, one dissenting), with none being a majority. As stated by Justice Roberts, “[i]t is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limit on the reach of the Clean Water Act.”

In Scalia’s plurality opinion, in which he was joined by three other justices, the Court held that the Corps jurisdictional authority is limited only to those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams, oceans, rivers, [and] lakes.” This “common sense” understanding of these terms does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

Although it was Justice Kennedy who cast the fifth pivotal vote to vacate and remand the lower court’s decision, his reasoning differed from the Scalia opinion. Kennedy concluded that a wetland is a navigable water of the U.S. if, under the CWA, it possesses a “significant nexus” to waters that are navigable in fact or could reasonably be so made. This nexus must be assessed in terms of the goals and purposes of the CWA, including restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters.” An isolated wetland possesses the requisite nexus, and thus is a “navigable water” of the US, if it alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of other covered waters understood to be navigable in the traditional sense. In effect, Kennedy reasoned that if the relationship to water quality is speculative or insubstantial, it will not be a “navigable water.”

The dissenting opinion, led by Justice Breyer, determined that the Corps’ regulatory framework and existing authority should remain intact.

The facts of the Chevron case involved the oil company’s six-inch crude oil pipeline in Snyder, Texas. On August 24, 2000, the pipeline failed due to external corrosion, which caused approximately 3,000 barrels of crude oil to discharge and migrate into a unnamed intermittent channel/tributary (“intermittent stream”) where it ponded. Chevron removed the spilled oil and excavated the soil where the oil had percolated into the ground. In less than two months after the spill, Chevron removed the crude oil stained and saturated bank of the unnamed channel/tributary. Chevron maintained that the beds and a nearby creek contained no flowing surface water during August, September, and early October 2000. The United States contended that there “may” have been some pooled water present in either the intermittent stream or nearby creek on August 25, 2000. According to USGS topographical and hydrological maps, the intermittent stream and nearby creek only flowed surface water during or shortly after a significant rainfall event. The intermittent stream and nearby creek extended 17.5 river miles to Rough Creek, which was also intermittent. Rough Creek extended 23.8 river miles to its confluence with the Double Mountain Fork, which in turn flowed 82.2 river limes to the Brazos River. The United States contended that “during times of flow” there was an unbroken surface water tributary connection from the intermittent stream and nearby creek, Rough Creek, to the Double Mountain Fork and into the Brazos River, an undisputed navigable water.

Chevron countered that even if pooled water may have been touched by oil, it was undisputed that the water was not navigable, which was the relevant issue on its motion for summary judgment. Essentially, Chevron argued that it was “self-evident that the Clean Water Act does not apply in the absence of water” where there were no navigable waters involved. The United States countered that in using “navigable waters” under the CWA and Oil Pollution Act (“OPA”), Congress intended a farther-reaching definition of “navigable” beyond being “navigable-in-fact.” [The U.S. unsuccessfully argued this position in In re Needham (5th Cir. 2003) 354 F.3d 340.] The United States urged approval of its regulatory definition of “navigable waters” to mean “all tributaries of navigable-in-fact waters.” This definition “covers all waters, excluding groundwater, that have any hydrological connection with ‘navigable water’.” Nevertheless, the Needham court held, and the Chevron court concurred, that the CWA and OPA do not permit the government to impose such regulations over tributaries “that are neither themselves navigable nor truly adjacent to navigable waters.” Rather, the proper inquiry was whether the site of the farthest traverse of the spill is navigable-in-fact or adjacent to an open body of navigable water.

The Chevron court did not have a problem adopting the Fifth Circuit view of “navigable” because it struggled with Kennedy’s “significant nexus” test from Rapanos. The court commented that in Rapanos, there was no guidance to implement the “vague, subjective centerpiece” known as the significant nexus test. The unnamed tributary at issue into which the oil spilled was “strikingly similar to the dry arroyo described by Justice Scalia in the plurality opinion as being the ‘most implausible of all’ in which to find the sweeping assertion of jurisdiction of ephemeral channels.” However, the Chevron court, as did Kennedy in Rapanos, recognized that the word “navigable” in navigable waters must be “given some importance.” The Chevron court relied on its Fifth Circuit authority from Needham. In the Fifth Circuit, the connection of generally dry channels and creek beds will not suffice to create a “significant nexus” to a navigable water simply because one feeds into the next during the rate times of actual flow. Because the United States only speculated where the “farthest traverse of the spill” reached, the evidence failed to show whether or not any oil from the spill actually entered the navigable waters of the United States. Ultimately, this lack of facts or speculation was the primary thrust in the court’s decision to grant Chevron’s motion for summary judgment favorably.

Chevron illustrates that at least one District Court is unwilling to go out on a limb by relying solely on either opaque test from the Rapanos concurring opinions. Instead, the Chevron court opted to cling to the interpretations and guidance from its prior unchallenged Needham opinion, which limits the Corps jurisdictional authority on isolated wetlands. It is expected that both EPA and the Corps will soon publish guidance on the Rapanos opinion, which would give courts and agencies the opportunity to further translate the uncertainties of Rapanos into a clear test with objective scientific criteria. Absent such a test, the law of each particular federal circuit court on isolated wetlands will prevail and the Corps jurisdictional authority will continue to be made on a case by case basis.

Diane Kindermann Henderson is a partner and Elias E. Guzman is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.