You asked for a brief summary of Rapanos v. United States, 126 S. Ct. 2208 (2006).

SUMMARY

The U. S. Supreme agreed to hear two cases (Rapanos v. U. S. and Carabell et al. v. U. S. Army Corps of Engineers et al. ) to determine whether four Michigan wetlands that enter into navigable waters are subject to regulation under the Clean Water Act (CWA). The Court consolidated these cases under the case name Rapanos v. U. S.

In a split decision authored by Justice Scalia, the Court construed the term “navigable waters” under the CWA to include wetlands only if they have a continuous surface connection, or are adjacent, to bodies that are waters of the U. S. in their own right. Because the case record did not provide sufficient information to determine whether the wetlands in the present case are covered under CWA, the Court vacated the judgment of the Sixth Circuit Court of Appeals and remanded the cases for further proceedings.

Chief Justice Roberts and Justices Thomas and Alito joined in the majority opinion. Justice Kennedy concurred in the judgment. He argues that the only issue on remand is whether the waters the wetlands enter into are navigable waters. Justice Stevens authored the dissenting opinion, arguing that the lower court had correctly established a direct connection between wetlands and waters of the U. S. Justices Breyer, Souter, and Ginsburg joined in the opinion.

Chief Justice Roberts and Justice Breyer also authored respective opinions for the majority and minority.

RAPANOS V. U. S.

Background

The cases involved four Michigan wetlands that lay near ditches or man-made drains that eventually empty into traditional navigable waters. CWA makes it unlawful to discharge dredged or fill material into “navigable waters” without a permit (33 USC §§1311(a) and 1342(a)), and defines “navigable waters” as “the waters of the United States, including the territorial seas,” (33 USC § 1362(7)).

The U. S. government brought civil enforcement proceedings against the Rapanos petitioners because they had backfilled three of the wetland areas in question without a permit. The district court found that the petitioners violated the CWA because the wetlands were adjacent to “waters of the United States,” based on the sites' hydrologic connections to the nearby ditches or drains, or to more remote navigable waters. The Sixth Circuit Court of Appeals affirmed the district court's decision.

The Carabell petitioners were denied a permit to deposit fill in a wetland that was separated from a drainage ditch by an impermeable berm (i. e. , a narrow shelf, path, or ledge typically at the top or bottom of a slope; or a mound or wall of earth or sand). The Carabells sued, but the district court found the wetland subject to regulation under the CWA. The Sixth Circuit Court of Appeals affirmed and held that the wetland was adjacent to navigable waters.

The Supreme Court granted certiorari (a Supreme Court order directing the lower court to transmit records for a case that it will hear on appeal) and consolidated the cases.

Arguments

The Rapanos petitioners argued that the terms “navigable waters” and “waters of the United States” in the CWA are limited to the traditional definition in The Daniel Ball, 10 Wall. 557 (1871), which requires that the “waters” be navigable or are able to be rendered navigable. The respondents argued that restricting the scope of “navigable waters” would hurt the enforcement against water polluters under the CWA (33 USC §§1311 and 1342).

Majority Opinions and Judgment

The Court rejected both arguments. It concluded that “navigable waters” under the CWA are broader than the definition in The Daniel Ball. Although the Court did not decide the issue, it also reasoned that a rejection of the Army Corps' argument on remand would not result in unenforceable laws.

The Court found that 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, and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

Further, the Court found that the Corps defined too broadly the term “adjacent” under U. S. v. Riverside Bayview Homes, Inc. , (474 U. S. 121, 133) and that the CWA authorizes federal jurisdiction only over “waters. ” That is, a wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection.

“Riverside Bayview rested on an inherent ambiguity in defining where the 'water' ends and its abutting ('adjacent') wetlands begin, permitting the Corps to rely on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters,” Justice Scalia wrote.

The majority held that (1) the lower courts misinterpreted terms and (2) there was not enough information to decide if there is a continuous surface connection between the wetlands in question and navigable waters and remanded the cases.

Concurring with judgment and separate opinion. Justice Kennedy concurred with the majority judgment, but further found that the Sixth Circuit Court of Appeals correctly recognized that a water or wetland constitutes “navigable waters” under the CWA, if it possesses a “significant nexus” (Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 US 159, 167, 172) to waters that are navigable or could reasonably be so made.

However, he found that absent more specific regulations, the Corps must establish a “significant nexus” on a case-by-case basis when seeking to regulate wetlands based on adjacency to non-navigable tributaries, in order to avoid unreasonable applications of CWA. He noted that the record on the current cases contains evidence pointing to a possible significant nexus, but neither the agency nor the reviewing courts considered the issue in these terms. Thus, he concurred that the cases should be remanded for further proceedings.

Dissent

Justice Stevens wrote in his dissenting opinion:

Contrary to the plurality's revisionist reading today, Riverside Bayview Homes, Inc. , 474 U. S. 121 (1985) nowhere implied that our approval of “adjacent” wetlands was contingent upon an understanding that “adjacent” means having a “continuous surface connection” between the wetland and its neighboring creek…. Instead, we acknowledged that the Corps defined “adjacent” as including wetlands “that form the border of or are in reasonable proximity to other waters” and found that the Corps reasonably concluded that adjacent wetlands are part of the waters of the United States (474 U. S. at 134).

[W]e emphasized that the scope of the Corps' asserted jurisdiction over wetlands had been specifically brought to Congress' attention in 1977, that Congress had rejected an amendment that would have narrowed that jurisdiction, and that even proponents of the amendment would not have removed wetlands altogether from the definition of “waters of the United States,” (Id. , at 135-139).

A copy of the entire opinion can be found at the Supreme Court website: http: //www. supremecourtus. gov/opinions/05pdf/04-1034. pdf.

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