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The U.S. Supreme Court issued two
important Clean Water Act (CWA)
decisions during its recently concluded
October 2005 term. United States v.
Rapanos, 126 S. Ct. 2208 (2006),
addressed a controversial wetlands issue. S.D.
Warren Co. v. Bd. of Envt'l Protection, 126 S. Ct.
1843 (2006), addressed what constitutes a dis-
charge under Section 401.
Wetlands
The Supreme Court's decision in Rapanos was
expected to clarify the extent of the Corps of
Engineers' jurisdiction to regulate wetlands that are
not immediately adjacent to traditionally navigable
waters. The Court in United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121 (1985), had
previously held that the Corps had jurisdiction to
regulate wetlands that actually abut[ted] on tradi-
tionally navigable waters, but it did not express an
opinion on wetlands that are more removed. It was
hoped that Rapanos would finally resolve the issue.
That did not happen. The Court failed to muster a
majority, and the five separate opinions issued
unfortunately will ensure that the waters remain
murky for the foreseeable future.
The CWA is less than a modicum of clarity.
Section 404 of the CWA requires a permit for the
discharge of dredged or fill material into navigable
waters. Navigable waters is defined by the CWA
as the waters of the United States including the
territorial seas. Waters of the United States has
been defined by regulation and case law to include
wetlands, but the scope of covered waters has
remained uncertain. The Supreme Court sought to
provide needed guidance when it granted certiorari
in Rapanos v. United States, 376 E3d 629 (6th Cir.
2004) and Carabell v. United States Army Corps of
Engineers, 391 E3d 704 (6th Cir. 2004).
In Rapanos v. United States, the Department of
Justice simultaneously brought criminal charges
and a civil action seeking injunctive relief and civil
penalties against John Rapanos for illegally filling
wetlands on three sites near Midland, Mich.
Rapanos was convicted in the criminal case, sen-
tenced to three years probation and ordered to pay
a $185,000 fine. The Supreme Court rejected an
appeal of Rapanos' criminal conviction in 2004.
The district court in the civil action found that
the wetlands filled by Rapanos were subject to the
CWA even though the wetlands were 11 to 20
miles away from truly navigable waters and were
connected to them only by ditches and drains. The
U.S. Court of Appeals for the Sixth Circuit affirmed.
In Carabell v. United States Army Corps of
Engineers, the Carabells owned property in
Michigan approximately one mile from Lake St.
Clair. The property contains forested wetlands adja-
cent to a man-made ditch that ultimately discharges
into Lake St. Clair. The wetlands are separated from
the ditch by a man-made berm that stops surface
drainage from the wetlands into the ditch.
The Carabells contested federal jurisdiction, but
nevertheless applied to the Corps for a permit to fill
their wetlands. The Corps denied the permit for a
number of reasons, including that the Carabells
failed to overcome the presumption that a less dam-
aging, practicable alternative was available.
The Carabells filed suit against the Corps, but
the district court held that the Corps had jurisdic-
tion over the wetlands and affirmed the Corps'
decision to deny the permit. The Sixth Circuit
affirmed. It agreed with the district court that,
despite the man-made berm separating the wet-
lands from the ditch, the wetlands were still adja-
cent to navigable waters because of a hydrologic
connection between the wetlands and the ditch.
The Supreme Court consolidated both cases for
argument and decision. The Court's judgment
reversed and remanded the cases for further fact-
finding. There were five separate opinions. Justice
Scalia wrote the plurality opinion in which Chief
Justice Roberts and Justices Thomas and Alito
joined. Chief Justice Roberts wrote a concurring
opinion, and Justice Kennedy wrote an opinion
concurring in the judgment of the Court. Justice
Stevens wrote a dissenting opinion in which
Justices Souter, Ginsburg and Breyer joined.
Justice Breyer filed a separate dissenting opinion.
The plurality pulled no punches. It found [t]he
extensive federal jurisdiction urged by the govern-
ment would authorize the Corps to function as a
defacto regulator of immense stretches of
intrastate land-an authority the agency has shown
its willingness to exercise with the scope of discre-
tion that would befit a local zoning board. It held
that while the meaning of waters of the United
States in the CWA is broader than traditionally
navigable waters, the Corps has stretched the
Continued on page 14
Co Printed on recycled paper
September/October 2006
Volume 38, Number 1
Supreme
Clean Water Acct'cc 'S,
By iannino-l Mai-till](ViewImageLocal?handle=hein.journals/trends38&div=1&collection=&method=preview&ext=.png&size=3)
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