Environmental law attorneys William L. Caplan and David J. Hrina present the following case law update:
On June 19, 2006, in Rapanos v. United States, U.S. No. 04-1034 (“Rapanos”), a majority of the United States Supreme Court failed to agree on the extent of the U.S. Government’s jurisdiction over wetlands under the Clean Water Act (the “Act”). Rather, the Rapanos Court vacated judgments against two separate developers who had challenged the U.S. Government’s jurisdiction over certain wetlands in Michigan, and remanded the cases back to the U.S. Sixth Circuit Court of Appeals for a factual determination of whether the wetlands in question are “waters of the United States” as defined in the Act.
By way of background, the Act gives the U.S. Army Corps of Engineers (the “Corps”) jurisdiction over wetlands to the extent that the wetlands can be classified as “waters of the United States,” as defined by the Act. In United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), John and Judith Rapanos desired to develop various parcels of their property in Michigan. Prior to developing the properties, various consultants and state regulators informed the Rapanos that the parcels contained “regulated” wetlands and that permits would be required prior to conducting any dredge of fill activities on the parcels. The Rapanos ignored the advice and proceeded to conduct dredge and fill activities without the permits, despite having received several administrative compliance orders from the U.S. Government. The Corps subsequently filed civil proceedings against the Rapanos in federal court alleging violations of the Act. Both the U.S. District Court and the U.S. Court of Appeals for the Sixth Circuit upheld the Corps’ jurisdiction over the wetlands based on the wetlands’ hydrologic connections and physical adjacency to navigable waters. The Rapanos then appealed to the U.S. Supreme Court.
In Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004), June and Keith Carabell and their partners wanted to build a condominium complex on their 19.6-acre plot of property in Chesterfield Township, Michigan. However, approximately 15 acres of the property contained forested wetlands. The Corps denied the Carabell’s application for a federal dredge and fill permit, and the Carabell’s filed an action in federal court challenging the Corps’ jurisdiction over the wetlands. Both the U.S. District Court and the U.S. Court of Appeals for the Sixth Circuit upheld the Corps’ jurisdiction over the wetlands and ruled against the Carabells. The Carabells then appealed to the U.S. Supreme Court.
The U.S. Supreme Court consolidated the two cases for review, but was unable to reach a consensus on whether the Corps had jurisdiction over the wetlands in either case. Therefore, the Court vacated the judgments against the Rapanos and the Carabells, and remanded both cases to the U.S. Courts of Appeals for the Sixth Circuit for further factual development. Notwithstanding, a plurality of Justices opined that the Corps’ jurisdiction under the Act should be restricted to relatively permanent bodies of water and wetlands with a continuous surface connection, or physical adjacency, to bodies of water that are clearly “waters of the United States.” The plurality’s opinion appears to reject the lower court’s hydrological theory of jurisdiction. In a concurring opinion, another Justice opined that a wetland must have a significant nexus to “waters of the United States” before the Corps will have jurisdiction, and that a “mere hydrologic connection” should not be enough in all cases.
Interestingly, the Court also criticized the Corps for not promulgating rules that more clearly define the words “wetland” and “tributary,” and for not establishing a procedure for identifying wetlands that have a significant connection to tributaries in the wake of the Court’s earlier decision in Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”). In SWANNC, the Court held that the mere presence of migratory birds is insufficient for the Corps to claim jurisdiction over isolated, non-navigable, intrastate bodies of water, and requested that the Corps promulgate regulations better defining the scope of its wetland regulations.
While we will have to wait to see whether the Corps promulgates additional clarifying regulations concerning wetlands, and to learn the fate of the Rapanos and Carabells on remand, one thing remains clear – in the wake of the Rapanos decision, there is no bright line test to determine whether the Corps has jurisdiction over wetlands that are clearly not “waters of the United States.”