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The Supreme Court on June 19 issued a split decision that may leave as many questions as answers concerning the extent to which the federal government may regulate wetlands under the Clean Water Act (CWA).

The court ruled 5-4 that the Army Corps of Engineers may have overstepped its CWA authority in the specific cases before the court, Rapanos and Carabell combined, because the wetlands involved are not significantly connected to navigable waters with a constant flow of water. The court sent those cases back to a lower court for reconsideration.

The Rapanos and Carabell cases involved two Michigan landowners with wetlands on their property who have been denied the right to develop the property by the corps or have been charged by federal authorities with civil enforcement actions for altering the wetlands.

"This ruling supports our position as expressed in our friend-of-the-court brief that fields and pastures that have been used by farmers and ranchers for many years should not be treated the same as rivers and streams," said AFBF President Bob Stallman shortly after the ruling was issued.

However, Justice Anthony Kennedy did not agree that all non-navigable waters are off limits to federal regulation. In a plurality decision, Kennedy issued his own opinion that essentially said that some non-navigable waters could come under federal jurisdiction if they significantly affect the "chemical, physical and biological integrity of other covered waters more readily understood as ‘navigable.’ "

The opinion by new Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas would have established a precedent that a direct connection is required in all instances for the feds to claim jurisdiction. The separate Kennedy opinion, however, makes it more of a case-by-case determination for lower courts. That leaves perhaps as much uncertainty as ever for landowners.

"This was not a clear victory for either side," said Julie Anna Potts, AFBF general counsel. "I would say it is a better day today for private property owners than before this decision came out. The court reiterated the limited scope of the Corps’ authority, but there is lack of clarity after Justice Kennedy’s opinion that we hoped would have been eliminated after this decision."

AFBF said that if any piece of land where water might fall and pool can come under federal regulation, then the strong arm of government unreasonably extends to "every drop of water" that falls in the United States. The group said that what federal regulators should take away from the Supreme Court ruling is that there has to be an important connection to navigable water.

Now that the court has ruled, there are three possible outcomes: continuing litigation that would create a body of law determining what constitutes a "significant nexus" with a navigable water body; new regulations by the corps to implement the Supreme Court’s ruling, and possibly renewed legislative efforts to clarify the law.

The outcome could create a surge of support for two bills already moving through Congress. The bills, which Farm Bureau opposes, would amend federal law to remove "navigable waters" and replace it with "waters of the United States," expanding the federal government’s jurisdiction.

"These bills would extend federal regulation to every ditch, field and bog in every back yard and on every farm across the country," said Don Parrish, AFBF senior director of regulatory relations. "That would be a dangerous expansion of federal control over what people can do with their land."

State legislatures also could increase regulation of wetlands.

Caption: Pictured is a wetland in Michigan. AFBF said that what federal regulators should take away from the Supreme Court ruling is that there has to be an important connection to navigable water for government to regulate wetlands under the Clean Water Act. Photo courtesy Natural Resources Conservation Service