The U.S. Supreme Court issued an opinion June 19, 2006 in Rapanos v. United States and Carabell v. United States, cases focusing on the extent of the jurisdiction of the Corps of Engineers (“COE”) over wetlands under the Clean Water Act (“Act”).  The Act allows the Corps to regulate “navigable waters of the United States.”  However, “navigable waters” under the Act is defined as “the waters of the United States, including the territorial seas” and are not limited to waters that are “navigable” in the traditional sense.  33 U.S.C. §1362(7).  For years the Corps interpreted the Act expansively to assert jurisdiction over virtually all wetlands regardless of how remote the connection to a navigable water, using the Commerce Clause as a basis. That was prior to the Supreme Court decision in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 167, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC”), which held that “isolated” wetlands do not fall within the jurisdiction of the Corps and that wetlands must be adjacent or have a “significant nexus” to navigable waters to fall within the Corps’ jurisdiction.  Following SWANCC, the Corps and the courts have wrestled with the meaning of “isolated” and “significant nexus,” with the Corps ever seeking to retain the broadest jurisdiction. .

The Supreme Court took up these issues again in the Rapanos and Carabell cases. Unfortunately the Supreme Court’s June decision did not command a majority opinion with a 4-1-4 split and provides little guidance. Justice Scalia wrote the plurality opinion which was joined by Chief Justice Roberts and Justices Thomas and Alito, arguing for an across-the-board reduction in Corps jurisdiction. Justice Kennedy wrote a concurring opinion which called for a case-by-case approach. The remaining Justices joined in a dissent that interpreted the Act to provide expansive jurisdiction to the Corps.

The Rapanos case involved a shopping center developer who filled in wetlands in the face of repeated cease-and-desist orders by the government.  The property at issue lies more that twenty miles away from the Kawkawlin River, the nearest navigable water body. The property is connected to a man-made drainage ditch that is connected to a creek that flows into the Kawkawlin. The Corps considered it “adjacent” due to the hydrological connection. The Carabell case involved a 15 acre tract on which the owners wanted to develop a multi-family condominium complex. The tract was about 1 mile from Lake St. Clair, Michigan and was connected to the Lake through a drainage ditch connecting to the Sutherland-Oemig Drain, which empties into the Auvase Creek, which empties into Lake St. Clair. The Corps found that the property was “adjacent” to a navigable water and denied a permit based on the value of the area to local habitat and drainage control.

Justice Scalia’s opinion states that “navigable waters,” under the Act include only relatively permanent standing or flowing bodies of water, not intermittent or ephemeral waters. This interpretation would remove many drainage ditches from Corps’ jurisdiction. He also indicated that only wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right are “adjacent” to such waters. This interpretation would somewhat reduce the jurisdictional reach of the Corps. Justice Scalia’s opinion would remand the case to the lower court for an analysis based on his opinion.

Justice Kennedy’s concurring opinion, which was the swing vote to remand the cases, is not as clear. Justice Kennedy repeated the SWANCC rule by stating that a wetland constitutes a “navigable water” under the CWA if it possesses a “significant nexus” to waters that are navigable in fact or that could reasonably be so made. He strongly suggested to the Corps that they develop rules for a “significant nexus” test. However, acknowledging the lack of such rules, Justice Kennedy then concluded that the Corps and the lower courts did not consider all the factors necessary to determine whether the lands in question had the requisite nexus.  His most important guidance was that the nexus should “be assessed in terms of the statute’s goals and purposes.” Interestingly, in a footnote he hints that jurisdiction may exist stating that “[i]n both the consolidated cases before the Court the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above.”

The primary effect of the Supreme Court’s decision is to require a fact-intensive inquiry on the part of land owners and the Corps. What little guidance can be gleaned is that the facts should be interpreted in light of the purpose of the Clean Water Act – to maintain and restore the nations’ waters.  In the end, it is likely that the case will cause increased litigation.