U.S. Supreme Court Issues Eagerly Awaited Clean Water Act Decision

On June 19, 2006, the United States Supreme Court issued an eagerly awaited decision in the Rapanos v. United States and Carabell v. United States cases.  Both cases arise out of Michigan and presented the Court the opportunity to clarify federal jurisdiction under section 404 of the Clean Water Act (33 U.S.C. §§ 1251 et seq.)(“CWA”) over non-adjacent, non-navigable wetlands and ditches.  As discussed below, the decision provides neither the sharp curtailment of federal power sought by the petitioners, nor the bright line test sought by many of the amicus briefs. 

Justice Scalia authored a plurality opinion to which Justice Kennedy concurred to the judgment only.  Four justices (Stevens, Souter, Ginsburg, Breyer) signed a dissenting opinion authored by Justice Stevens.

Kennedy's opinion generally sets out the new rule, since the holding of the Court is the position taken by those justices who concurred in the judgment on the narrowest grounds.  Kennedy wrote that the Corps has jurisdiction over wetlands with a “significant nexus” to “navigable waters in the traditional sense.”  A significant nexus exists when a wetland, alone or in combination with similarly-situated lands in the region, significantly affects the chemical, physical and biological integrity of other waters understood as navigable in the traditional sense. 

The dissent argued that the Corps has broad authority to regulate virtually all wetlands, while the plurality of the Supreme Court concluded that the CWA's protection of “waters of the United States” is limited to those bodies of water that are “permanent, standing or continuously flowing,” and only to wetlands with a “continuous surface connection” to “waters of the United States.”   

The Decision's Impact
Lower courts will likely follow the “significant nexus” rule set forth in Justice Kennedy's concurring opinion, while recognizing that four members of the court, led by Justice Scalia, invalidated the Circuit Court's decision on much broader grounds.  The result will likely be new Corps regulations and, until the Corps adopts those regulations, continued litigation over Corps jurisdiction as the courts attempt to decide exactly how to apply the Kennedy criteria in individual cases.

 

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