Rapanos v. United States

PETITIONER: John A. Rapanos et ux. et al.
RESPONDENT: United States
LOCATION: Board of Immigration Appeals

DOCKET NO.: 04-1034
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 547 US 715 (2006)
GRANTED: Oct 11, 2005
ARGUED: Feb 21, 2006
DECIDED: Jun 19, 2006

ADVOCATES:
M. Reed Hopper - argued the cause for Petitioners in No. 04-1034
Paul D. Clement - argued the cause for Respondents
Timothy A. Stoepker - argued the cause for Petitioners in No. 04-1384

Facts of the case

John Rapanos sought to fill in three wetland areas on his property in order to build a shopping center. Rapanos ignored warnings from the Michigan Department of Environmental Quality that the area was protected wetlands under the Clean Water Act (CWA). The CWA allows the government to regulate the discharge of any pollutant (including dirt or sand) into "navigable waters," which the Act defines as "the waters of the United States." Under regulations issued by the Army Corps of Engineers (Corps), wetlands are covered by the CWA as long as they are adjacent to traditionally navigable waters or tributaries of such waters. After Rapanos also ignored cease-and-desist orders from the U.S. Environmental Protection Agency, the government brought a civil suit against him. Rapanos argued before the District Court that the CWA gives the government jurisdiction to regulate only traditionally navigable waters. The government countered that Rapanos's lands were covered by the CWA as "adjacent wetlands" under the Corps's interpretation of the Act; the sites drained into man-made drains which eventually emptied into navigable rivers and lakes. The District Court rejected Rapanos's argument and upheld the Corps's regulations including the wetlands as "waters of the United States." The Sixth Circuit Court of Appeals affirmed, holding that the "hydrological connection" of the wetlands to the navigable waters qualifies them as "waters of the United States" under the Act.

The Carabells sought to fill in a wetland on their property in order to build a condominium, but were denied a permit because the wetland was protected under the Clean Water Act (CWA). The CWA allows the government to regulate the discharge of any pollutant (including dirt or sand) into "navigable waters," which the Act defines as "the waters of the United States." Under regulations issued by the Army Corps of Engineers (Corps), wetlands are covered by the CWA as long as they are adjacent to traditionally navigable waters or tributaries of such waters. Carabell's site is separated from a nearby ditch by a 4-foot-wide berm (earthen barrier), but the Corps's regulations specify that the wetland is nevertheless adjacent to the waterway. The ditch empties into another ditch, which in turn empties into a creek and ultimately into Lake St. Clair, a navigable water. After exhausting administrative appeals, Carabell sued in District Court. Carabell argued that the government lacked jurisdiction under the CWA to regulate the relatively isolated wetland as part of the "waters of the United States." The District Court disagreed, and upheld the Corps's expansive interpretation of the CWA. On appeal, the Sixth Circuit Court of Appeals also ruled for the Corps, holding that as long as wetlands are "adjacent" to tributaries of traditionally navigable waters and share a "significant nexus" with such waters, the wetlands qualify as "waters of the United States" for purposes of the CWA.

Question

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?

Media for Rapanos v. United States

Audio Transcription for Oral Argument - February 21, 2006 in Rapanos v. United States

Audio Transcription for Opinion Announcement - June 19, 2006 in Rapanos v. United States

John G. Roberts, Jr.:

Justice Scalia has the announcement in 04-1034, Rapanos versus United States, and 04-1384, Carabell versus United States Army Corps of Engineers.

Antonin Scalia:

These cases are here on writ of certiorari to the United States Court of Appeals for the 6th Circuit.

I am announcing the judgment of the Court, which is to vacate and remand these cases for further proceedings.

My opinion, which I will now summarize, is joined by the Chief Justice and Justices Thomas and Alito.

The Clean Water Act makes it illegal without a permit from the Corps of Engineers to discharge dredged or fill material into, “the waters of the United States”.

Getting an individual permit can be enormously expensive -- over $1.7 billion is spent in obtaining them each year -- and the Corps’ regulations allow denial of permits not only for environmental reasons, but also because of economics, aesthetics, recreation and, “in general, the needs and welfare of the people”, factors no less expansive than those taken into account by state and local authorities for land-use zoning.

The two cases before us concern wetlands -- that is, lands sufficiently saturated at least part of the time to support aquatic vegetation -- wetlands in Michigan.

Most of this land lies near ditches or manmade drains that eventually empty into navigable waters.

Petitioners are developers, who claim the right to backfill these lots without getting a permit.

No one here contends that intrastate wetland such as this are, ipso facto, waters of the United States, and our opinions make clear that they are not.

The 6th Circuit held, however, that these wetlands were covered by the Act, because the nearby ditches and drains constituted tributaries of navigable waters and because the wetlands were adjacent to those tributaries, both by reason of their physical proximity and by reason of their hydrologic connection to it.

The 6th Circuit holding is in accord with the Corps’ regulations, which define “waters of the United States” to include, among other things, wetlands adjacent to waters of the United States; and the Corps means by “adjacent” not just a butting, but also nearby or having some hydrologic connection; and the regulations define “waters of the United States” to include tributaries of those waters and defines “tributaries” to include any channel that contains a visible mark of the passage of water, such as a high waterline of litter or debris, even if the channel is ordinarily dry and contains water only during rainfall.

Thus, under its regulations, the Corps has asserted permitting jurisdiction over, as waters of the United States, storm sewers, manmade drainage ditches miles from traditional waterways and arid canyons connected to waters only through the flow of groundwater over centuries and even desert washes that hold rainwater once a year; and it has also asserted jurisdiction over wetlands adjacent to these features, by which it means wetlands nearby, even if separated by a 70-foot-wide impermeable dike over which automobiles travel, wetlands that are connected to United States waters by sheet flow of rainwater during storms and wetlands connected to such waters by flooding once every 100 years.

The Corps convinced one district court that a wetland was adjacent simply because, “water molecules currently present in the wetlands”, we’re sure at some point, no matter when or how, to, “intermingle with water” from a navigable river.

Based on its understanding of adjacent wetlands, the Court has asserted jurisdiction over 270 to 300 million acres of wetlands, including half of Alaska and an area the size of California in the lower 48 states.

And based on its definition of tributary, any channel that contains a visible mark of passage of water, no matter how rarely the water passes, constitutes a covered tributary of the waters of the United States.

This includes storm sewers in major cities and dry washes in immense arid deserts.

Thus, a vast portion of the nation’s dry land potentially constitutes waters.

We think all this departs very much indeed from what the statute provides.

With regard to tributaries, the Act authorizes jurisdiction only over the waters of the United States.

Used in the plural and with a definite article, this term refers only, in the words of the dictionary definition to water, “as found in streams and bodies forming geographical features such as oceans, rivers and lakes”.

A country’s waters do not include dry channels, desert washes or storm gutters.

They include streams, rivers, lakes, oceans -- in short, relatively permanent, continuously standing or flowing bodies of water.

The Act itself distinguishes conveyances that typically contain intermittent flows of waters, such as ditches, channels and conduits, from permanent bodies of water by defining the former separately as “point sources”, not as “waters of the United States”.

And the Corps’ broad interpretation is inconsistent with the Act’s stated purpose of preserving the state’s primary responsibility to plan the development and use of land resources, because it makes the Federal Government a de facto regulator of huge tracts of intrastate land.

A waterlogged log in the middle of a town become subject to the Corps’ permitting authority rather than the town’s zoning authority, simply because it is adjacent to a storm drain.

We ordinarily expect a clear and manifest statement from Congress to authorize agency action that pushes to the limits of Congress’s commerce power or that intrudes upon an area of traditional state responsibility, such as land-use regulation.

The Corps’ interpretation does both with no clear and manifest statement other than “the waters of the United States”.

As for the Corps’ expansive definition of “adjacent”, it must be understood, first of all, that the notion of adjacency does not come from the statute; rather, it comes from one of our opinions, called Riverside Bayview, in which we held that wetlands adjacent to covered waters, in the sense that they actually abutted covered waters, were also covered by the Act.

The reason we included those wetlands was that there is an inherent boundary-drawing problem between waters and the adjoining wetlands that they gradually blend into.