Facts of the Case
The Clean Water Act (CWA) made it unlawful to discharge dredged or fill material into navigable waters without a permit, and defined navigable waters as the waters of the United States, including the territorial seas. The Army Corps of Engineers (Corps), which issued permits for the discharged of dredged or fill material into navigable waters, interpreted the waters of the United States expansively to include not only traditional navigable waters, but also other defined waters, tributaries of such waters, and wetlands adjacent to such waters and tributaries. The present cases involved four Michigan wetlands located near ditches or man-made drains that eventually emptied into traditional navigable waters. In the first case, the United States brought civil enforcement proceedings against defendants John A. Rapanos and others who had deposited fill material without a permit into some wetlands. A federal district court found that the wetlands in question were within federal jurisdiction as adjacent to other waters of the United States, and held defendants liable for violations of the CWA. A federal appellate court affirmed that judgment. In the second case, after plaintiffs June Carabell and others had been denied a permit to deposit fill material in a wetland, and after administrative appeals had been exhausted, plaintiffs filed a lawsuit in federal district court challenging the exercise of federal regulatory jurisdiction over the wetland. The district court ruled that there was federal jurisdiction, on the basis that the wetland was adjacent to neighboring tributaries of navigable waters, and had a significant nexus to waters of the United States. Petitioners challenged the decision. The same appellate court in the Rapanos case affirmed the district court’s judgment. Both the Rapanos and Carabell litigants were grated writs of certiorari, which were consolidated for review.
Does the phrase waters of the United States in the Clean Water Act include a wetland that at least occasionally empties into a tributary of a traditionally navigable water?
Unanswered. The closely-divided Court split 4-1-4, with Justice Anthony Kennedy providing the crucial fifth vote to reject the Sixth Circuit’s decision.Justice Antonin Scalia wrote the plurality opinion, which was joined by three other Justices. The plurality rejected the argument that only actually-navigable waters can be regulated by the Clean Water Act, but also held that the word navigable in the Act cannot be divested of all meaning. The plurality held that the definitional term waters of the United States can only refer to relatively permanent, standing or flowing bodies of water, not occasional, intermittent, or ephemeral flows. Furthermore, A mere hydrological connection is not sufficient to qualify a wetland as covered by the CWA