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Justice Kennedy’s Opinion In Rapanos Still Controls Questions of Clean Water Act Jurisdiction Within the Ninth Circuit

The Ninth Circuit Court of Appeals, on November 27, has re-established that Justice Kennedy’s concurring opinion in Rapanos still controls Clean Water Act jurisdiction over navigable waters of the United States, notwithstanding the Circuit’s purported application of Justice Scalia’s plurality opinion in a 2016 opinion. [U.S. v. Robertson, 875 F.3d 1281 (9th Cir. 2017).]



Over the course of a year, Joseph D. Robertson built a series of ponds on National Forest System lands in connection with the privately owned Manhattan Lode mining claim. Creation of the ponds involved the discharge of dredged and fill material into surrounding wetlands and an adjacent tributary, which flows to Cataract Creek, itself a tributary of the Boulder River, which is in turn is a tributary of the Jefferson River—a traditionally navigable water of the United States. An Environmental Protection Agency Special Agent warned Robertson that his activities “very likely” required permits under the Clean Water Act (33 U.S.C. §§ 1251–1388). But he did not obtain permits to build the ponds or to discharge dredged or fill material into waters of the United States.

The federal Clean Water Act prohibits unpermitted discharge of dredge or fill material into “navigable waters.” 33 U.S.C. §§ 1311(a), 1311(d), 1344(a). Any person who knowingly violates § 1311 by discharging a pollutant without a permit issued by the U.S. Army Corps of Engineers (Corps) “shall be punished” by a fine, imprisonment, or both. 33 U.S.C. § 1319(c)(2). Jurisdiction under the Clean Water Act is delimited to “navigable waters,” defined as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). In other words, “[f]or there to be [Clean Water Act] jurisdiction here then, the creek and wetlands that Robertson polluted had to be ‘waters of the United States.’”

By May 2015 a grand jury indicted Robertson on three criminal counts, including two counts of Clean Water Act violations—knowingly discharging dredged or fill material from a point source into a water of the United States without a permit, and knowingly discharging dredged or fill material from a point source into a water of the United States on private property without a permit. An initial jury trial resulted in a hung jury; at the conclusion of a second jury trial, Robertson moved for an acquittal on the bases that: 1) the prosecution did not establish that there was Clean Water Act jurisdiction, and 2) he lacked fair warning of the scope of Clean Water Act jurisdiction. The motion was denied, the jury convicted, and Robertson moved again for acquittal and a new trial. Both of these post-judgment motions were denied, and Robertson appealed.


The Ninth Circuit’s Decision

The Ninth Circuit’s jurisdictional examination centered on application of “the Supreme Court’s fractured 4-1-4 decision,” Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos the Court:


  • . . .confronted the issue of whether wetlands, which did not contain or directly abut traditionally navigable waterways, were ‘waters of the United States’ subject to the Corps’ jurisdiction under the [Clean Water Act]. Id. at 729–30 (plurality); id. at 759 (Kennedy, J., concurring in the judgment).

In answering this question, the Court had to address whether the Corps’ regulations were a permissible interpretation of the Clean Water Act. The regulations had interpreted ‘waters of the United States’ very broadly, including not just traditionally navigable interstate waters, but also: “[a]ll interstate waters including interstate wetlands. . . [33 C.F.R.] § 328.3(a)(2);. . .[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” [id.] § 328.3(a)(3); “[t]ributaries of [such] waters,” [id.] § 328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” [id.] § 328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. [Id.] § 328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’ ” [Id.]

Rapanos, 547 U.S. at 724 (plurality).

In Rapanos the Court found the regulations “were not “based on a permissible construction of the statute.” Id. at 739, 126 S.Ct. 2208 (quoting Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984). The Rapanos plurality opinion (authored by Scalia and joined by Roberts, Thomas and Alito) held:


  • . . .the phrase ‘the waters of the United States’ includes only 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.’ Ibid.

The plurality further specified:


  • . . .that wetlands are covered by the [Clean Water Act] only if two conditions are met: first, ‘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, ‘the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’ Id. at 742.

Justice Kennedy provided the fifth vote joining the plurality, but wrote separately to set forth his own test, under which the Corps could reasonably interpret the CWA to cover “impermanent streams,” id. at 770, 126 S.Ct. 2208, and he concluded that the “Corps’ definition of adjacency is a reasonable one,” id. at 775, 126 S.Ct. 2208. Kennedy found that the Corps could exercise CWA jurisdiction over a wetland only if there was “a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Id. at 779, 126 S.Ct. 2208; see also id. at 767, 126 S.Ct. 2208. He explained:


  • . . .wetlands possess the requisite nexus, and come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ Id. at 780, 126 S.Ct. 2208.

Kennedy found that when “wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’” Id.

The balance of the Court joined the dissent authored by Stevens, which opined:


  • . . .that the Corps’ regulations were a reasonable interpretation of the CWA, and that any wetland that is adjacent to navigable waters or their tributaries is subject to the CWA. 547 U.S. at 787.



The Ninth Circuit’s Trail of Reasoning

Subsequent to Rapanos, the Ninth Circuit held in Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 995 (9th Cir. 2007), that “Justice Kennedy’s opinion was the controlling opinion from Rapanos,” following the decisions of the Seventh (United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006), and Eleventh Circuits (United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007), and subsequently joined by the First, Third and Eighth Circuits. United States v. Johnson, 467 F.3d 56, 64–66 (1st Cir. 2006); United States v. Donovan, 661 F.3d 174, 176, 182 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009). Relying on ambiguity and uncertainty as to the controlling standard in the Fourth, Fifth and Sixth Circuits, and the Ninth Circuit’s own en banc decision in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016), Robertson argued there was uncertainty as to the controlling standard and that the trial court erred in basing its jury instructions on Kennedy’s decision in Rapanos.

Robertson, here, argued Davis’ “reasoning based” decision relied on the plurality opinion in Rapanos, not Kennedy’s opinion. The Ninth Circuit’s Davis opinion applied Marks v. United States, 430 U.S. 188, 193 (1977), which instructs that:


  • . . .[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’

Robertson further argued that the City of Healdsburg decision held that Kennedy’s “concurrence is the narrowest ground to which a majority of the Justices would assent if forced to choose in almost all cases.” City of Healdsburg, 496 F.3d at 999, but under Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003), en banc authority trumps the “clearly irreconcilable” decision of a three-judge panel within the Circuit—so, did Davis’s purportedly differing en banc decision overrule City of Healdsburg? The Ninth Circuit explained that under Marks:


  • . . .an opinion that concurs in the judgment that is ‘the logical subset of other, broader opinions’ is the ‘narrowest grounds’ and controlling.

And under Miller:


  • . . .so long as the opinion that is a ‘logical subset’ is an opinion that concurred in the judgment, the ‘broader opinion’ of which it is a subset can be a dissent.

The court found that as applied to Rapanos, “[t]he overarching issue … was whether the breadth of the Corps’ regulations was permissible. The narrowest holding was the one that restrained the Corps’ authority the least,” i.e., Kennedy’s. Via this route, the Court held Davis not irreconcilable with City of Healdsburg, and therefore Kennedy’s jurisdictional test still to be the controlling standard.


Conclusion and Implications

By dint of a chain of logical reasoning that would make a mediaeval scholar proud, the Ninth Circuit saved Justice Kennedy’s jurisdictional test for navigable waters under the Clean Water Act for future application. Whether that is a stable state of affairs in light of recent changes in the composition of the Supreme Court remains to be seen. The Ninth Circuit’s decision is accessible online at:

(Deborah Quick)