▪ Muddying the Clean Water Act

Hawaii property owners, especially those near the ocean or a stream, should pay special attention to the U.S. Supreme Court’s latest decision interpreting the federal Clean Water Act.

The Act is designed to keep pollution out of “navigable waters,” but what does that term mean? The answer is not as simple as it may appear.

As strange as it sounds, “navigable waters” includes much more than waters that are actually navigable. The Army Corps of Engineers, the agency tasked with enforcement, defines the term very expansively to include drainage ditches, isolated marshes, patches of desert, and anything adjacent to them. If there might be a “hydrological connection” between your land and actually navigable water, these all-embracing regulations require you to obtain a permit before you do anything that might impact navigable waters even miles away.

An example of how this regulatory power was abused is the case of John Rapanos, a Michigan property owner whose appeal was decided by the U.S. Supreme Court in July. The federal government is pursuing Mr. Rapanos because it claims he needed a Clean Water Act permit before he moved sand from one side of his cornfield to the other. The government claimed his cornfield contained “wetlands,” which are “navigable waters” because they have a hydrological connection to a river twenty miles away.

Mr. Rapanos’ legal odyssey was only just beginning. When he refused to obtain the permit, the government convicted him of a federal crime, sought to throw him in federal prison for 10 years, and fined him $185,000. As if that was not enough, the government also sought civil fines of $10 million, mitigation fees, and forfeiture of half of his land.

Finally, after twelve years of trials and appeals, his case reached the Supreme Court, which ruled that the government overstepped its authority. The Court struck down the regulations, but could not agree why they were unlawful.

Four Justices said that in order to subject isolated “wetlands” to Clean Water Act regulations, the government had to show the nearby water is relatively permanent (such as the ocean or a stream), and there is a continuous surface connection between the property and that water.  Four dissenting Justices said that the regulations were perfectly acceptable as they were, and would have upheld the penalties against Mr. Rapanos.  The remaining Justice, Anthony Kennedy, said that the determination of whether property contained federal wetlands should be decided case-by-case to determine whether there was a “significant nexus” to actually navigable waters.

In the end, the Court could not agree on anything but the result: the Corps had gone too far, and its regulations were invalid. Unfortunately, the 4-4-1 split and resulting lack of clear direction from the Court has left farmers and ranchers in just as much uncertainty as they were before the decision. 

Even a careful property owner can only speculate whether a seemingly isolated wet patch of land, ditch, or drain – however remote and insignificant it may appear – may be somehow connected to traditionally navigable waters. Property owners act at their peril, because even innocuous actions may result in a violation.

Hawaii owners may be especially at risk, because no land in Hawaii is more than a few miles from the ocean, and most farms and ranches are much, much closer.  Nearly any seemingly isolated drain, ditch, or moist soil may later be shown to have an invisible hydrological connection to the ocean.  Does this mean you need a federal Clean Water Act permit before you risk undertaking routine tasks on your own property? Under the inconclusive Rapanos decision, your guess is at least as good as the Supreme Court’s.

The Corps has been urged to scale back its ambitions and revise its regulations to impose more reasonable rules. Historically, however, the Corps has resisted change, even when mandated by the Supreme Court.  Revised regulations, even if eventually enacted, are likely years away.  In the interim, it is up to the lower courts to try and apply the fractured Rapanos decision, leaving property owners to guess whether their activities may put them at risk.

If five Supreme Court judges cannot agree on a definition of “navigable waters,” it hardly seems fair that property owners are now tasked with determining whether their activities might require a Clean Water Act permit, chancing imprisonment and fine if they turn out to be wrong.