The Significant Nexus by Geniusodespair

When talking about the Clean Water Act and the Army Corp's jurisdiction, you can't do so without talking about the Rapanos Decision's "Significant Nexus." It is all very complicated but I just love that term so I am trying to understand it. Hit read more if you care. Warning: very dry discussion. But at the next cocktail party you attend you can say: "What do you think of the Significant Nexus" and know full well they won't know what you are talking about and they will either back away or think you are very smart.

Supreme Court Decision in Rapanos and Carabell Wetland Cases—Practical Impacts

"On the other hand, Justice Kennedy wrote a concurring opinion that relies on the "significant nexus" test initially mentioned by the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (commonly referred to as the SWANCC case). The test requires that a significant ecological relationship must exist between a traditionally navigable water of the United States and the wetland. Justice Kennedy notes that the significant nexus test is not met solely by virtue of a hydrologic connection between the wetland and the navigable water at issue. Rather, Justice Kennedy concludes that the Clean Water Act requires an ecological connection between the value and function of the wetland and the water quality of the navigable water at issue, regardless of an actual hydrological connection. Under Justice Kennedy's test, the Corps must determine, on a case-by-case basis, whether such a significant nexus exists whenever it seeks to regulate a wetland based on adjacency to non-navigable tributaries. Though framed in the context of adjacent wetlands, this is presumably the type of analysis he would apply to ephemeral waters as well. Particularly in the context of ephemeral waters, it is worth noting (as Justice Kennedy does) that Corps jurisdiction may not be warranted even in areas with a direct and open connection to a traditionally non-navigable water if these areas lack a significant ecological nexus to the downstream, navigable-in-fact waters.

IMPLICATIONS

The Supreme Court decision clearly failed to live up to the expectations that it would resolve the troublesome legal issue of the extent of the federal jurisdiction over "wetlands." The hoped-for "bright line" test has not emerged. Nonetheless, the Court has sent a strong message to the Corps that the agency needs to have a stronger basis for 404 jurisdiction than the agency has applied in the past. In fact, it appears that Justice Kennedy's concurring opinion advocating for the application of the "significant nexus" test will establish the standard and will be used to determine what constitutes "waters of the United States" and which wetlands are subject to regulation under section 404. Although no other Justice joined in Justice Kennedy's opinion, the general jurisprudential rule in a case like this, where a majority of the members of the Court agree on the result but cannot agree on the reasoning, is that the narrowest analysis offered by a Justice joining the decision will provide the precedent.

The extent to which this case changes the regulatory playing field is difficult to predict at this time. Indeed, as noted by both Chief Justice Roberts and Justice Kennedy in their separate concurring opinions, decisions on the scope of the Clean Water Act's section 404 program will continue to be made on the ground, on a case-by-case basis."