Rapanos, John, et al. v. U.S. / Carabell, June, et al. v. Army Corps of Engineers, et al. (06/19/2006)

Questions presented: (1) Whether the U.S. Army Corps of Engineers acted reasonably in interpreting the term "waters of the United States" as it appears in the Clean Water Act (CWA), 33 U.S.C. 1362(7), to encompass a wetland area that is separated from a tributary of a traditional navigable water by a narrow man-made berm, where evidence in the record reflected the presence of at least an occasional hydrologic connection between the wetland and the adjacent tributary? (2) Whether the application of the CWA to the wetland at issue in this case is a permissible exercise of congressional authority under the Commerce Clause?

BY KEVIN ROYKO & EMILY HOWALD, MEDILL NEWS SERVICE

The federal Clean Water Act of 1972 was designed to rid America's waterways of pollutants, but for June Carabell and John Rapanos, the legislation could have the unfortunate side effect of cleaning out their wallets.

And it appears to be a ditch and a drain that are causing the problems.

According to the Clean Water Act, it is unlawful for a person to discharge any pollutant into navigable waters or into wetlands and tributaries adjacent to navigable waters.

The key issue in both of these cases is how extensively the federal government can use the Act to restrict development on or near wetlands.

Questions have arisen about how the government defines ‘adjacent' and how it interprets the interconnectedness of water systems.

Since 1988, John Rapanos has been battling with state and federal governments over his efforts to develop a shopping center on one of his Michigan properties. Rapanos has filled in wetlands at three locations on this property, despite repeated cease-and-desist orders by government regulators, and faces millions of dollars in fines and a possible prison sentence.

Even though his property lies more that twenty miles away from the nearest navigable waterway, the Kawkawlin River, Rapanos was told by the federal government there was a "hydrological connection" between the two.

No shopping center would go up on his land because wetlands on his property are connected to a man-made drain that is in turn connected to a creek that flows into the Kawkawlin.

Rapanos disagreed and took his case to court.

After the U.S. District Court for the Eastern District of Michigan ruled against him, Rapanos appealed to the 6th Circuit Court of Appeals.

On July 26, 2004, the 6th Circuit unanimously affirmed the lower court's ruling that the Army Corps of Engineers was correct in determining that the land on which Rapanos wanted to build a shopping center was indeed a wetland adjacent to navigable waters.

District Judge Danny Reeves, who was sitting by designation on the case, wrote that according to federal regulations, "‘Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.'"

However, Reeves also noted that, "Determining how much of a connection is necessary has proven difficult." And he added that, "Unfortunately, the two leading Supreme Court cases on the reach of the CWA have done little to clear the muddied waters of CWA jurisdiction."

In Carabell's case, which also originates in Michigan, she has come to loggerheads with the federal government over whether she can build a condominium complex on her property in Chesterfield Township, near Detroit.

A ditch running along one edge of Carabell's property drains into a creek which eventually empties into Lake St. Clair – the navigable waterway in the case.

Carabell was initially denied a Michigan Department of Environmental Quality permit to fill in more than 15 acres of wetlands for the construction of a 130-unit housing complex, but on appeal, a state administrative law judge ordered that a permit be issued in November 1998 for a 112-unit development with on-site wetland enhancement.

The federal Environmental Protection Agency, which objected to the judge's order, informed Carabell that the Clean Water Act gave the Army Corps of Engineers ultimate jurisdiction over any development of wetlands.

As in the Rapanos case, after Carabell applied for a permit with the Corps and was denied, she filed suit in the U.S. District Court for the Eastern District of Michigan.

Carabell lost and appealed to the 6th Circuit Court of Appeals, where the lower court's ruling was upheld on Sept. 27, 2004, when District Judge William Stafford, sitting by designation, wrote: "Because the wetlands on the Carabells' property are separated from a tributary of ‘waters of the United States' only by a man-made berm or barrier, they are considered ‘adjacent wetlands'" and "fall within the jurisdiction of the Corps for purposes of the [Clean Water Act]." Judge Stafford noted that the court's unanimous opinion was consistent with the Rapanos opinion only two months before.

Under the Commerce Clause of the U.S. Constitution, Congress has the authority over navigable waters and the adjacent wetlands and tributaries in order "[t]o regulate commerce with foreign Nations, between the several States and with Indian Tribes."

This issue has become a major bone of contention between environmentalists and property owners because a prohibitive application of the law inevitably impacts personal property rights, impedes construction and adds to the cost of housing.

Now it's the U.S. Supreme Court turn. On Oct. 11, 2005, the Court accepted review in both cases, consolidated them for consideration and set 80 minutes, instead of the usual 60 minutes, for oral arguments.

"By its terms, the Clean Water Act does not apply to every drip and drop of water in the Nation," wrote attorney Mark Perry, who filed a brief on behalf of the Washington Legal Foundation in support of Rapanos.

"The water in a puddle on a sidewalk will eventually find its way to a river, but the puddle is surely not ‘navigable' – and Congress certainly cannot assert its Commerce Clause power over the child who fills the puddle with dirt to make mud pies," Perry added in the brief.

"The heavens will not fall if the Supreme Court declares that Congress cannot regulate every piece of ground in America," said attorney William Pendley, who filed a brief on behalf of the Mountain States Legal Foundation supporting Rapanos.

However, those arguing for strict enforcement of the Act say that its intention is to provide comprehensive protection of water quality regardless of any inconvenience to developers.

"In any event, the federal government possesses long-standing and well-established power to protect the quality of navigable waters by regulating upstream pollutant discharges," wrote the U.S. Solicitor General in a brief for the U.S. government in opposition to the Supreme Court reviewing Carabell's case.

During the Supreme Court's oral arguments on Feb. 21, 2006, the interpretation of "water of the United States" as it appears in the Clean Water Act was at issue. Specifically, the Court was asked to consider whether the act covers only navigable waters and adjacent wetlands or something more.

If the Court agrees with the United States and Army Corps of Engineers, a great number of developments close to navigable waters, such as shopping malls and housing complexes, could be regulated by the Corps and the Environmental Protection Agency.

U.S. Solicitor General Paul Clement fought for the inclusion of water systems beyond the traditional navigable waterways and its adjacent wetlands. He argued that by not regulating the tributaries under question, the government would be creating a "free dump zone."

The justices appeared torn over which water systems were controllable under the Corps' jurisdiction, and which water systems were considered separate from navigable waters, and thus outside of the Corps' control.

Justice David Souter seemed to support the solicitor general's claim as he questioned M. Reed Hopper, who, along with Timothy Stoepker, argued the case for the developers. "If you put poison in the adjacent wetland, it's going to get into the navigable water. Exactly the same argument can be made as you go further and further up the tributaries," Souter said during Hopper's initial statement.

Chief Justice John Roberts said, "at some point you've got to say stop because logically any drop of water anywhere is going to have some sort of connection through drainage."

Justice John Paul Stevens took the argument a step further. "When we're talking about the scope of federal power, we're not merely concerned with dumping refuse in the creek, but also deliberate attempts to poison the water system," he said during Hopper's final statement.

The definition and interpretation of a real tributary remained throughout, and many of the justices, especially Justice Antonin Scalia, struggled with a tributary's connection to navigable water systems. Though Solicitor General Clement defined a tributary as "basically any channelized body of water that takes water in a flow down to the traditional navigable water," Scalia was unconvinced.

"What percentage of total land mass of the United States, if you define tributary as broadly as you define it to include? Every storm drain? I mean, it's the whole country, isn't it?" Scalia asked. He called the inclusion of this water type "absurd" and "extravagant."

Earlier, Scalia attempted to narrow the issue by asking the developers' attorneys to define the waterways in question in relation to a navigable water system. Stoepker said in the case of Carabell, there was no hydrological connection. Hopper said he did not believe any discharge from Rapanos' development project would reach navigable waters.

Clement disagreed. He said by failing to cover the tributary system, the navigable waters would continue to be polluted. He concluded by asking the justices to recognize the "real-world consequences" that would come from contracting the jurisdiction of the Corps and the EPA, especially for the states downstream.

On June 19, 2006, a divided Court held 5-4 that the phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams," "oceans, rivers, [and] lakes," and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

In writing the Court's lead opinion, Justice Scalia concluded that a wetland may not be considered "adjacent to" remote "waters of the United States" based on a mere hydrologic connection. Only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between the two, are "adjacent" to such waters and covered by the Act, he wrote.

Justice Anthony Kennedy added the needed 5th vote for the majority in concurring. Kennedy did not go as far as the plurality. In his judgment, a water or wetland constitutes "navigable waters" under the Act if it possesses a "significant nexus" to waters that are navigable in fact or that could reasonably be so made. Nonetheless, he concurred because he concluded that the 6th Circuit's opinion had not considered all the factors necessary to determine that the lands in question had, or did not have, the requisite nexus. Therefore, his agreement to vacate the 6th Circuit opinion rested on remanding the case for further proceedings to determine if there is such a nexus.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer dissented.