By Wade Foster<\/p>\n
This post is part of the\u00a0Environmental Law Review Syndicate<\/a>. The original post is linked\u00a0here<\/a>.<\/em><\/p>\n On January 31, 2018, the U.S. Environmental Protection Agency (\u201cEPA\u201d) and U.S. Army Corps of Engineers (\u201cCorps\u201d) finalized a rule delaying implementation of the Obama-era Clean Water Rule until February, 2020.[1]<\/a> The Clean Water Rule had attempted to clarify the definition of \u201cwaters of the United States\u201d and the boundaries of federal jurisdiction under the Clean Water Act (\u201cCWA\u201d).[2]<\/a> Now, with implementation of the Clean Water Rule delayed, we return to a world where federal jurisdiction under the CWA is governed by the Supreme Court\u2019s fractured opinion in Rapanos v. United States<\/em>.[3]<\/a><\/p>\n Much ink has been spilled by lower courts attempting to interpret the 4-1-4 Rapanos<\/em> decision.[4]<\/a> The first court to consider the Supreme Court\u2019s opinion in Rapanos <\/em>determined that it did not provide any clear direction, or binding precedent, and instead decided to apply Fifth Circuit precedent.[5]<\/a> When another district judge was remanded a case for consideration in light of Rapanos<\/em>, he asked for a different judge to be assigned because he was \u201cso perplexed by the way the law\u201d had developed around Rapanos<\/em>.[6]<\/a> The Sixth Circuit Court of Appeals said that the Rapanos<\/em> opinion has \u201cindeed satisfied any \u2018bafflement\u2019 requirement.\u201d[7]<\/a> Federal Circuit Courts of Appeals have variously interpreted the fractured opinion: six of the circuit courts have either determined that Justice Kennedy\u2019s concurrence constitutes the \u201cnarrowest grounds\u201d[8]<\/a> or have followed the Rapanos <\/em>dissent, giving weight to both the plurality\u2019s approach and Kennedy\u2019s concurrence. Interestingly, none of the circuit courts to consider Rapanos<\/em> have read the plurality\u2019s opinion as controlling.<\/p>\n This article will briefly review the Clean Water Act and previous Supreme Court opinions that led to Rapanos<\/em>, discuss the Court\u2019s Rapanos<\/em> opinions, examine how Marks v. United States <\/em>defined the \u201cnarrowest grounds,\u201d provide an overview of the various lower court\u2019s interpretations of Rapanos <\/em>as they have attempted to apply Marks<\/em>, and finally consider options going forward.<\/p>\n To understand the problems posed by Rapanos <\/em>and some of the challenges the lower courts have faced in parsing the opinion, it is necessary to have a basic understanding of the Clean Water Act and the Supreme Court\u2019s opinions prior to Rapanos<\/em>.<\/p>\n Congress passed CWA for the purpose to \u201crestore and maintain the chemical, physical, and biological integrity of the Nation’s waters.\u201d[9]<\/a> Two of the ways the Act sought to achieve its lofty goal was to prohibit the discharge of any \u201cpollutants\u201d[10]<\/a> or \u201cdredged or fill material\u201d[11]<\/a> to \u201cnavigable waters\u201d without a permit. The term \u201cnavigable waters\u201d was traditionally defined as navigable-in-fact waterways that could be used as a channel of interstate commerce.[12]<\/a> However, Congress, recognizing a broader definition was needed to achieve the goals of the act, expanded \u201cnavigable waters\u201d to \u201cwaters of the United States, including the territorial seas,\u201d without defining \u201cwaters of the United States.\u201d[13]<\/a> This vague definition of \u201cnavigable waters\u201d started the flow of litigation leading to Rapanos<\/em>.<\/p>\n The first Supreme Court case to consider the definition of \u201cnavigable waters\u201d was United States v. Riverside Bayview Homes<\/em> in 1985.[14]<\/a> In Riverside<\/em>, the Court held that the Corps did not act unreasonably in interpreting \u201cnavigable waters\u201d to include non-navigable wetlands that were adjacent or connected to navigable-in-fact waters.[15]<\/a> This decision seemed to support deference to the agency, in making what can be a complicated scientific decision, and a broad definition of \u201cnavigable waters.\u201d In 2001, however, the Court held that the agency went beyond its jurisdictional authority in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers<\/em> (\u201cSWANCC<\/em>\u201d).[16]<\/a> Prior to SWANCC<\/em> the Corps and EPA had promulgated the Migratory Bird Rule, which extended the Corps\u2019 jurisdiction under the CWA to include intrastate waters and wetlands that were not connected to traditionally navigable waters so long as they were used by migratory birds.[17]<\/a> The Court, after reviewing the statutory language, struck down the Migratory Bird Rule as beyond the scope of the Act and held that for a wetland to be within the Corps\u2019 jurisdiction it must be adjacent to a navigable water.[18]<\/a> While the Court recognized that Congress intended to regulate beyond navigable-in-fact waters, it narrowed the Corps\u2019 authority and set what, until Rapanos<\/em>, was the outer bound of the Corps\u2019 jurisdiction.[19]<\/a> Despite SWANCC<\/em> lower courts continued to take a broad reading of \u201cnavigable water.\u201d[20]<\/a><\/p>\n III. The Rapanos<\/em> Decision<\/u><\/strong><\/p>\n The preceding history, and the lower courts\u2019 broad reading of \u201cnavigable waters,\u201d set the stage for Rapanos<\/em>. In Rapanos<\/em>, the Court addressed whether the terms \u201cnavigable waters\u201d and \u201cwaters of the United States\u201d in the CWA covered wetlands which were not navigable themselves and which were not adjacent to waters that were navigable. Rather, the waters at issue were connected to man-made ditches and drains that eventually emptied into traditionally navigable waters.[21]<\/a><\/p>\n Justice Scalia wrote for the plurality, joined by Chief Justice Roberts and Justices Alito and Thomas (hereinafter \u201cthe Plurality\u201d). The Plurality found that the Corps\u2019 interpretation of \u201cnavigable waters\u201d exceeded the scope of the CWA. The Plurality first narrowed the definition of the phrase \u201cwaters of the United States,\u201d with regard to tributaries, such that it includes only those relatively permanent, standing or continuously flowing bodies of water \u201cforming geographic features\u201d that are described in ordinary parlance as \u201cstreams[,] . . . oceans, rivers [and] lakes.\u201d The phrase does not include channels, through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.[22]<\/a><\/p>\n It is important to note the emphasis on the relative permanency of flow and the geographic features of the waters. The Plurality dropped a footnote to clarify that by \u201crelatively permanent\u201d they did not mean to exclude waters that might dry up in extraordinary circumstances or seasonal rivers which contain flow only during some months.[23]<\/a> These features of the Plurality\u2019s opinion have become important as lower courts have struggled to apply the law to geology and hydrology.[24]<\/a><\/p>\n The second part of the Plurality opinion addressed wetlands, stating that \u201conly those wetlands with a continuous surface connection<\/em> to bodies that are \u2018waters of the United States\u2019 in their own right, so that there is no clear demarcation between \u2018waters\u2019 and wetlands, are \u2018adjacent to\u2019 such waters and covered by the Act.\u201d[25]<\/a> The opinion explained that \u201c[w]etlands with only an intermittent, physically remote hydrologic connection to \u2018waters of the United States\u2019. . . lack the necessary connection\u201d to be jurisdictional.[26]<\/a> This continuous surface connection test represents the Plurality\u2019s focus on physical features to define \u201cwaters of the United States.\u201d<\/p>\n In support of this test, the Plurality also spent some time discussing Congress\u2019 use of the term \u201cnavigable\u201d in relation to defining the scope of CWA jurisdiction. Reasoning that Congress must have meant something by using \u201cthe traditional phrase \u2018navigable waters,\u2019\u201d the Plurality attempted to give it some effect in their interpretation of \u201cwaters of the United States.\u201d[27]<\/a><\/p>\n Justice Kennedy concurred in the judgment, agreeing that the Corps had exceeded their jurisdiction, but differed from the Plurality in how to define \u201cwaters of the United States.\u201d[28]<\/a> His opinion limited the Corps\u2019 jurisdiction to those wetlands that have a \u201csignificant nexus\u201d to \u201cnavigable waters in the traditional sense.\u201d[29]<\/a> To have a significant nexus a wetland must \u201ceither alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity\u201d of traditionally navigable waters.[30]<\/a> Conversely, if a \u201cwetlands\u2019 effects on water quality are speculative or insubstantial\u201d it would not be jurisdictional.[31]<\/a> Justice Kennedy\u2019s test takes a much more ecological approach than the Plurality. This is in part a recognition that Congress\u2019 purpose in passing the act was to restore the ecological health of the Nation\u2019s waterways. The one point where Justice Kennedy and the Plurality agreed was that wetlands that are adjacent to traditionally navigable waters are \u201cwaters of the United States.\u201d[32]<\/a><\/p>\n Justice Stevens\u2019 dissent, joined by Justices Souter, Ginsburg, and Breyer (hereinafter \u201cthe Dissent\u201d), would have granted Chevron<\/em> deference to the Corps\u2019 interpretation of \u201cnavigable waters\u201d and upheld the lower court\u2019s rulings.[33]<\/a> Recognizing the problems created by the lack of a controlling majority the Dissent pointed out that the Plurality and Justice Kennedy\u2019s concurrence \u201cdefine different tests to be applied on remand.\u201d[34]<\/a> The Dissent then went on to advise lower courts that all four justices of the Dissent would uphold the Corps\u2019 jurisdiction under either the Plurality\u2019s or Justice Kennedy\u2019s test, and that \u201con remand each of the judgments should be reinstated if either<\/em> of those tests is met.\u201d[35]<\/a> Justice Stevens recognized that there was not going to be an easily determined \u201cnarrowest grounds,\u201d or overlapping directive, between the two opinions.[36]<\/a> While Justice Kennedy\u2019s concurrence gives the Corps more jurisdiction than the Plurality\u2019s opinion, there is the potential for a wetland to have a continuous surface flow, meeting the Plurality\u2019s test, but not a significant nexus, failing Justice Kennedy\u2019s test.<\/p>\n Chief Justice Roberts also recognized the problems posed by the lack of a controlling opinion and wrote separately to provide guidance to the lower courts. The Chief Justice lamented that \u201c[l]ower courts and regulated entities will now have to feel their way on a case-by-case basis.\u201d[37]<\/a> The Chief Justice then went on to cite Grutter v. Bollinger <\/em>for its discussion of Marks<\/em>.[38]<\/a> Some have suggested that pointing to the discussion of Marks <\/em>in Grutter <\/em>was meant to show lower courts that there was precedent on how to interpret plurality opinions, and that lower courts should apply the Marks<\/em> doctrine to the fractured Rapanos <\/em>opinion.[39]<\/a> However, the actual approach taken by the Court in Grutter<\/em>, not \u201c[pursuing] the Marks <\/em>inquiry to the utmost logical possibility,\u201d[40]<\/a> is much closer, in reality, to the lower courts\u2019 varying treatment of the Rapanos<\/em> opinion. The message the Chief Justice meant to send with his citation to Grutter<\/em> as opposed to citing directly to Marks<\/em> is unknown, but it was prescient.<\/p>\n In Marks v. United States<\/em>, the Court stated that when \u201ca fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, \u2018the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds<\/em>.\u2019\u201d[41]<\/a> In the case of Marks<\/em>, the Court held that the narrowest grounds from the prior opinion in Memoirs v. Massachusetts <\/em>was the plurality\u2019s opinion that \u201cmaterials were deemed to be constitutionally protected unless. . . they were \u2018utterly without redeeming social value,\u2019 and satisfied the. . . other requirements.\u201d[42]<\/a><\/p>\n The \u201cnarrowest grounds\u201d quote from Marks <\/em>was derived from a footnote in Gregg v. Georgia<\/em>, where the Court considered whether the death penalty, as applied, was cruel and unusual punishment and interpreted the fractured opinion of Furman v. Georgia<\/em>.[43]<\/a> In Gregg<\/em>, the Court determined that the narrowest grounds articulated in Furman <\/em>was that of the two concurring judges who found the death penalty as applied cruel and unusual, but did not find the death penalty per se<\/em> cruel and unusual.[44]<\/a> The Gregg <\/em>Court held that \u201cFurman<\/em> mandates that where discretion is afforded a sentencing body [on the death penalty], that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.\u201d[45]<\/a><\/p>\n The Court in both Marks <\/em>and Gregg<\/em>, therefore, recognized that despite the lack of controlling majority, Memoirs<\/em> and Furman<\/em> yielded controlling law.[46]<\/a> In both cases the Court spent little time discussing how exactly to define the narrowest grounds, instead identifying the opinions that constituted the \u201cgoverning standard.\u201d[47]<\/a><\/p>\n Where fractured plurality opinions directly overlap, and one opinion is a logical subset of the other(s), finding such a standard may be fairly straight-forward.[48]<\/a> However, when the fractured opinions are based on divergent reasoning, and thus are not logical subsets of each other, applying the \u201cnarrowest grounds\u201d inquiry gets much more complicated.[49]<\/a> Indeed, as one court has observed \u201c[f]or some issues, asking which of two opinions is narrower is akin to asking, \u2018Which is taller, left or right?\u2019\u201d[50]<\/a> With this in mind, it is useful to examine the various ways in which the Memoirs <\/em>plurality and the Furman<\/em> concurrence may constitute the narrowest grounds.<\/p>\n The first approach is the implicit consensus approach, where the opinion that is found to be the \u201cgoverning standard\u201d is a logical subset of the other opinions. In Memoirs <\/em>the plurality was a logical subset of the other concurrences in that it arrived at the same outcome but was not as restrictive for future cases as the concurrences.[51]<\/a> One way to think about this approach is as a \u201cmiddle-ground opinion,\u201d which falls between the broadest opinion supporting the judgment and the dissent.[52]<\/a> In other words, the opinion constituting the narrowest grounds would \u201capply in a subset of cases encompassed by the broader opinion.\u201d[53]<\/a> This was true for the Gregg <\/em>Court\u2019s determination that the Furman <\/em>concurrence constituted the narrowest grounds.[54]<\/a><\/p>\n However, when the opinions are not logical subsets of each other, then the implicit consensus approach falls apart. In such cases, another option is the \u201cfifth-vote approach,\u201d which defines the narrowest grounds as the opinion that would enjoy the support of the most judges should they be forced to choose.[55]<\/a> Marks <\/em>suggested that the \u201cnarrowest grounds\u201d must be found from those judges concurring<\/em> in the judgment, implying that the dissent should not be considered.[56]<\/a> However, some courts have determined that the dissent may be included in this calculation.[57]<\/a> Indeed, this is what Justice Stevens counseled in his Rapanos <\/em>dissent by noting that the four dissenting justices would find jurisdiction under either the Plurality\u2019s test or Justice Kennedy\u2019s test.[58]<\/a> However, courts have been hesitant to employ this approach.[59]<\/a><\/p>\n Another way to view the Marks <\/em>and Gregg <\/em>analysis is that the \u201cleast far-reaching\u201d approach constitutes the \u201cnarrowest grounds.\u201d[60]<\/a> In the case of Marks <\/em>this could be either the opinion least restrictive of the government\u2019s ability to police obscene material, or the opinion which changes the status quo the least. In the case of Gregg <\/em>the \u201cleast far-reaching\u201d might mean the opinion that changes the status quo the least, or is the least restrictive of the government\u2019s ability to use the death penalty. In either case, however, it is hard to see how these rationalizations might be described as the \u201cnarrowest\u201d except that they make the narrowest change to existing law.<\/p>\n Finally, Professor Ryan Williams advances the \u201cissue-by-issue\u201d approach to finding the \u201cnarrowest grounds,\u201d where the lower court looks to fractured opinions (including the dissent) to \u201cdetermine each proposition where five or more justices agree.\u201d[61]<\/a> Several courts have taken this approach in parsing Rapanos<\/em>,[62]<\/a> demonstrating what has become clear from lower courts\u2019 attempts to find meaning in Rapanos<\/em>: the clearest guidance may have been that of Chief Justice Roberts\u2019 concurrence, telling courts \u201cto feel their way on a case-by-case basis.\u201d[63]<\/a><\/p>\n To date the Rapanos <\/em>opinion has been cited in over ninety cases in at least thirty-five states. Six circuit courts have attempted to apply the fractured opinion with varying results.[64]<\/a> The first appellate court to consider the Rapanos<\/em> opinion was the Seventh Circuit in United States v. Gerke Excavating<\/em>.[65]<\/a> The Supreme Court had remanded Gerke <\/em>to the Seventh Circuit with express instructions to reconsider the decision in light of Rapanos<\/em>. Applying Marks<\/em>, the Gerke <\/em>court determined that Justice Kennedy\u2019s concurrence constituted the narrower test because it was less restrictive of federal authority.[66]<\/a> The Gerke <\/em>court reasoned that where Justice Kennedy found jurisdiction so would the four Rapanos <\/em>dissenters.[67]<\/a> In reaching its decision, the court did recognize that in some cases the Rapanos <\/em>plurality would find jurisdiction where Justice Kennedy would not and that the four dissenters would join the Plurality in those rare cases, but found that as a \u201cpractical matter the Kennedy concurrence was the least common denominator.\u201d[68]<\/a><\/p>\n The Ninth Circuit and Eleventh Circuit arrived at similar conclusions as the Seventh Circuit, determining that Justice Kennedy\u2019s test constituted the narrowest grounds.[69]<\/a> Even though these three circuit courts arrived at the same conclusion, they got there by very different reasoning. The Seventh Circuit and Ninth Circuit both employed an issue-by-issue approach in determining that a majority of the justices, including the dissenters, would most often find CWA jurisdiction under Justice Kennedy\u2019s test.[70]<\/a> In contrast, and despite also holding that Justice Kennedy\u2019s approach was the narrowest, the Eleventh Circuit explicitly rejected the issue-by-issue approach, instead determining that Marks<\/em> prevented it from considering the dissent when determining the narrowest grounds.[71]<\/a><\/p>\n The next circuit court to consider Rapanos <\/em>after the Seventh Circuit was the First Circuit in United States v. Johnson<\/em>.[72]<\/a> After an extensive analysis of Marks<\/em> and subsequent decisions analyzing Marks<\/em>, the Johnson<\/em> court noted that the Supreme Court had \u201cmoved away from Marks<\/em>\u201d and determined that neither the Plurality nor Justice Kennedy\u2019s concurrence constituted the \u201cnarrowest grounds.\u201d[73]<\/a> The Johnson<\/em> court decided to take Justice Stevens advice and find jurisdiction if either the Plurality\u2019s or Justice Kennedy\u2019s tests were met. The Third and Eighth Circuits have followed the First Circuit in this reasoning.[74]<\/a><\/p>\n The Second, Fourth, Fifth, and Sixth Circuits have thus far avoided determining which approach to apply. These circuits have either accepted the parties\u2019 stipulation that Justice Kennedy\u2019s test applied or found that both tests have been met, thereby leaving resolution of a standard to a future case.[75]<\/a><\/p>\n The Supreme Court has refused to grant certiorari in any of the cases attempting to resolve CWA jurisdiction.[76]<\/a> Where it has taken a case that raises the issue, it has carefully avoided the issue.[77]<\/a> Given the challenges associated both with the underlying scientific issues of determining hydrologic connectivity and parsing fractured opinions, the Supreme Court may be waiting for more percolation on the issue, in hopes of identifying a more manageable legal standard.[78]<\/a> In his Rapanos<\/em> concurrence, Chief Justice Roberts also admonished the Corps for not promulgating a new rule clarifying their jurisdiction under the CWA in-light of the Court\u2019s ruling in SWANCC<\/em>.[79]<\/a> The Supreme Court may have hoped to have the agencies take up the issue and propose a rule before reconsidering the issues raised in Rapanos<\/em>. As it stands, with the Trump administration\u2019s delay of implementation of the Clean Water Rule pending a new rule being proposed, lower courts are left to grapple with the Rapanos <\/em>decision.[80]<\/a><\/p>\n Perhaps the most interesting thing about the Rapanos <\/em>opinion is not its lack of clarity, but that two justices saw fit to give lower courts advice on how to interpret it. While Chief Justice Roberts cited to Grutter <\/em>and Marks<\/em>, Justice Steven\u2019s advised courts to consider the votes of the dissenters. Unfortunately, neither directive has proved very helpful. As discussed above, applying Marks<\/em> to Rapanos <\/em>is problematic. Likewise, taking account of the dissenting justices, which effectively tries to predict the outcome of the case should the Court grant certiorari, raises concerns that judges are counting noses instead of applying the law. The confirmation of Justice Gorsuch to the bench and the rumors of Justice Kennedy\u2019s retirement make clear that \u201ccounting noses\u201d to find the \u201cnarrowest grounds\u201d is not a reliable strategy. Should the current Court reconsider its holding in Rapanos<\/em>, it is likely to split along similar lines, but if Justice Kennedy retires, the Court may take a new position either restraining, or broadening, federal jurisdiction.<\/p>\n Generally, the lower courts have determined that Justice Kennedy\u2019s opinion constitutes the narrowest grounds, either because it would enjoy the support of a majority of justices (i.e. the fifth vote approach) or because it is the most deferential to the government\u2019s authority. The Plurality opinion has never been considered the \u201cnarrowest\u201d and has only been adopted as an alternative way to find jurisdiction. Notably, none of the courts have held that jurisdiction should be found when both<\/em> the Plurality\u2019s test and Justice Kennedy\u2019s test are met. If Marks <\/em>requires the position that the majority of the justices supporting the judgment<\/em> of the Court must be found, then in the case of Rapanos<\/em> this would require that both the Plurality\u2019s and Justice Kennedy\u2019s tests are met to find jurisdiction. In this way, the majority of those supporting the \u201cnarrowest\u201d judgment would also support the corresponding outcome of the lower court on appeal.<\/p>\n Yet, lower courts have been reluctant to narrow the jurisdiction of the Corps under the CWA, largely because the language and congressional history of the Act support a broad reading to address the multitude of challenges to achieving clean water.[81]<\/a> This underlying purpose points to another approach for the lower courts to take, which several of them have, to interpret the Rapanos<\/em> opinion in-light of the purpose of the CWA and grant deference to the Corps in their interpretation of both the act and the Rapanos <\/em>opinion. Following SWANCC<\/em> the outer bounds of the Corps\u2019 jurisdiction are clearer. And, granting deference up to this outer bound where the Corps have otherwise met the less restrictive Rapanos<\/em> opinion (either the Plurality\u2019s or Justice Kennedy\u2019s as the case may be) might hold truer to the intent of Congress in passing the CWA.<\/p>\n Unfortunately, until the agencies further clarify the definition of \u201cwaters of the United States,\u201d or the Court deems it appropriate to clarify its opinions in both Marks <\/em>and Rapanos<\/em>, the lower courts will be left with little guidance. Perhaps Chief Justice Roberts was correct to cite Grutter<\/em> for the proposition that Marks <\/em>is unworkable in situations like Rapanos<\/em> and the lower courts should look beyond Rapanos <\/em>to determine jurisdiction under the CWA.<\/p>\n [1]<\/a> See <\/em>83 Fed. Reg. 5200 (Feb. 6, 2018); Amena H. Saiyid, Pruitt Signs off on Blocking Clean Water Regulation<\/em>, Water L. & Pol\u2019y Monitor (BNA), Feb. 1, 2018.<\/p>\n [2]<\/a> 33 U.S.C. \u00a7 1251 et seq.<\/em><\/p>\n [3]<\/a> 547 U.S. 715 (2006).<\/p>\n [4]<\/a> See e.g.<\/em>, Berkolow, Much Ado About Pluralities: Pride and Precedent Amidst the Cacophony of Concurrences, and Re-Percolation After Rapanos<\/em>, 15 Va. J. Soc. Pol’y & L. 299, 319 (2008) (discussing the use of Marks<\/em> in Rapanos <\/em>analysis).<\/p>\n [5]<\/a> United States v. Chevron Pipe Line Co.<\/em>, 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006) (holding that under Fifth Circuit precedent dry stream beds were not \u201cnavigable waters\u201d under the meaning of the CWA, the court did not consider Marks<\/em>).<\/p>\n [6]<\/strong><\/em><\/a> United States v. Robison, 521 F. Supp. 2d 1247, 1248 (N.D. Ala. 2007) (\u201cRemarkably, \u2026 the Eleventh Circuit held that a test which serves to broaden federal jurisdiction (\u2018i.e., less restrictive of CWA jurisdiction\u2019) is the \u2018less far reaching\u2019 and \u2018narrowest\u2019 of two purported tests.\u201d).<\/p>\n [7]<\/a> United States v. Cundiff, 555 F.3d 200, 208 (6th Cir. 2009).<\/p>\n [8]<\/a> Marks v. United States, 430 U.S. 188, 193 (1977) (\u201cWhen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, \u2018the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.\u2019\u201d (citing Gregg v. Georgia, 428 U.S. 153, 169 n.15, (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).<\/p>\n [9]<\/a> 33 U.S.C. \u00a7 1251.<\/p>\n [10]<\/a> Id. <\/em>at \u00a7 1311(a) (the term \u201cpollutant\u201d is defined in the Act, point source dischargers (commonly thought of as industrial sources) are able to apply for a pollution control permit from the EPA).<\/p>\n [11]<\/a> Id.<\/em> at \u00a7 1344 (\u201cdredged or fill material\u201d is not defined in the Act but is typically thought of to include fill dirt from uplands or dredged material removed to keep waterways open to ships, the Corps has authority to issue permits for deposition of dredged or fill material to \u201cnavigable waters\u201d).<\/p>\n [12]<\/a> The Daniel Ball, 77 U.S. 557 (1870) (defining \u201cnavigable waters\u201d as navigable-in-fact \u201cwhen they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water\u201d).<\/p>\n [13]<\/a> 33 U.S.C. \u00a7 1362(7) (the CWA charges the EPA and Corps with further defining \u201cwaters of the United States\u201d).<\/p>\n [14]<\/a> United States v. Riverside Bayview Homes, 474 U.S. 121 (1985).<\/p>\nI. INTRODUCTION<\/h2>\n
II. BACKGROUND<\/h2>\n
IV. FINDING MEANING IN MARKS<\/em> – WHAT ARE THE NARROWEST GROUNDS?<\/h2>\n
V. LOWER COURTS TACKLE RAPANOS<\/em><\/h2>\n
VI. MOVING AHEAD<\/h2>\n