Family Farm Alliance
The Supreme Court’s Murky Wetlands
Decision In Consolidated Case Is Not As
Definitive As Had Been Hoped
By now you have undoubtedly seen several reports of
the much anticipated decision of the United States Supreme Court in the
consolidated cases of Rapanos v.
United States and Carabell v. United States.
Unfortunately, some of those reports have made either
more or less of the decision than is justified.
That is understandable; many had hoped this case
would offer a definitive and objective test for the definition of
“navigable waters” under the Clean Water Act in order to clarify
which waters and wetlands are subject to the Act. While the
decision offers some important guidance, it does not provide a “bright
In Rapanos, the
plaintiffs filled three different wetlands sites in
Michigan without the proper Clean Water Act permits under
Section 404. At one site the wetlands were connected to navigable waters
by a manmade drain that drained waters from the wetlands into a creek that
then flowed into a river some eleven miles away that ultimately emptied
Huron . At another site the
wetlands drained into a manmade drain that connected to a navigable river.
In the third instance the wetlands drained into adjacent wetlands that
were linked to a river flowing into Lake Huron .
plaintiffs had pursued a permit to
fill forested wetlands located one mile from Lake St. Claire in
Michigan from which water drained through a ditch into a drain
that emptied into a creek, which in turn entered into Lake St.
In none of these instances were the wetlands
immediately adjacent to or flowing directly into a navigable
The Court determined by a 5-4 vote that in each of
these instances, the wetlands in question were not subject to Clean Water
However, the Court failed to reach a consensus on the
test to be used to determine when wetlands are subject to federal
jurisdiction, resulting in five different written opinions.
Ultimately, four justices voted in favor of
significantly narrowing the definition of “navigable waters” under the Act
(thus voting to limit federal jurisdiction) while four justices voted to
uphold the much broader definition (and broader federal jurisdiction)
advocated by the Corps of Engineers.
As a result of this 4-4 split, Justice Anthony
Kennedy’s concurring opinion carried the day, resulting in a 5-4 decision
against the Corps and remanding the cases to the trial courts for further
The four justices voting to limit the government’s
Clean Water Act jurisdiction found that the Act only applies to
“relatively permanent, standing or flowing bodies of water” and that
wetlands fall under the Act only if they bear “a continuous surface
connection to bodies of water that are ‘waters of the
States ’ in their own right.”
The four justices seeking to sustain or expand
jurisdiction under the Act argued that “all identifiable tributaries” of
navigable waters should be covered, meaning almost all wetlands would be
subject to the Act.
Justice Kennedy rejected both approaches and, relying
on an earlier Court decision – Solid
Waste Agency of North Cook County vs USACE – found that jurisdiction over wetlands depends upon
the existence of a “significant nexus” between the wetlands in question
and navigable waters in the traditional sense.
Given some of the recent determinations regarding the
scope of the Clean Water Act’s reach such as Headwaters Inc. v. Talent Irrigation District
(irrigation canals), Save Our Sonoran Inc. v. Flowers ( Arizona arroyos with no navigable water connection) and
Baccaratt Fremont Development, LLC v.
Army Corps of Engineers (wetlands
separated from navigable waters by a 70 foot thick impermeable berm),
Justice Kennedy’s opinion is certainly a positive
development for those wishing to rein in federal jurisdictional hubris.
However, the “Rapanos
test” is far from the hoped for
bright line test.
Instead, it will require case by case and very
fact-specific analysis, undoubtedly inviting more litigation and fostering
disputes over whether wetlands adjacent to non-navigable waterways have
the required nexus to justify regulation under the Clean Water Act.
Justice Kennedy’s Reasoning
In Wetlands Cases
Justice Kennedy explained that wetlands possess the
and thus come within the statutory phrase “navigable
waters”, if the
wetlands, either alone or in combination with
similarly situated lands in
the region, significantly affect the chemical,
physical and biological
integrity of other covered waters readily understood
When wetlands’ effects on water quality are
insubstantial, they fall outside the zone fairly
encompassed by the
statutory term “navigable waters” and are thus not
subject to federal
regulation under the Clean Water Act. Justice Kennedy
was also clear
that the Clean Water Act is intended to regulate at
lease some waters that
are not navigable in the traditional sense.
Justice Kennedy noted that the government could
identify categories of water bodies that are “likely
important functions for an aquatic system
waters” on the basis of specifically articulated
However, Justice Kennedy found that the existing
for determining when wetlands are “waters of the
States ” did
not provide the required level of assurances.
According to Justice
Kennedy, wetlands immediately adjacent to navigable
in fact waters
can be regulated without further demonstration of
their impacts on
waters of the Unites States , but the government must establish the
required “significant nexus” on a case by case basis
to regulate wetlands adjacent to non-navigable