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Rapanos v. United States

Supreme Court of the United States

February 21, 2006, Argued ; June 19, 2006, 1Decided

(No. 04-1034), (No. 04-1384)


 [*719]  [**2214]   Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice,  [****10] Justice Thomas, and Justice Alito join.

 [***167]  In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and  [*720]  sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away.  339 F.3d 447, 449 (CA6 2003) (Rapanos I). Regulators had informed Mr. Rapanos that his saturated fields were "waters of the United States," 33 U.S.C. § 1362(7), that could not be filled  [*721]  without a permit. Twelve years of criminal and civil litigation ensued.

] The burden of federal regulation on those who would deposit fill material in locations denominated "waters of the United States" is not trivial. In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as "economics," "aesthetics," "recreation," and "in general, the needs and welfare of the people," 33 CFR § 320.4(a) (2004). 2 The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit [****11]  spends 313 days and $28,915--not counting costs of mitigation or design changes. Sunding & Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74-76 (2002). "[O]ver $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits." Id., at 81. These costs cannot be avoided, because ] the Clean Water Act "impose[s] criminal liability," as well as steep civil fines, "on a broad range of ordinary industrial and commercial activities."  [**2215]   Hanousek v. United States, 528 U.S. 1102, 1103, 120 S. Ct. 860, 145 L. Ed. 2d 710 (2000) (Thomas, J., dissenting from denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr. Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines. See United States v. Rapanos, 235 F.3d 256, 260 (CA6 2000). 

 [*722]  [****12]   The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act--without any change in the governing statute--during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over "the waters of the United States" to cover 270-to-300 million acres of swampy lands in the United States--including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit--whether man-made or natural, broad or narrow, permanent or ephemeral--through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated "waters of the United States" include storm drains, roadside  [***168]  ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory [****13]  "waters of the United States" engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a "water of the United States."

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547 U.S. 715 *; 126 S. Ct. 2208 **; 165 L. Ed. 2d 159 ***; 2006 U.S. LEXIS 4887 ****; 74 U.S.L.W. 4365; 62 ERC (BNA) 1481; 19 Fla. L. Weekly Fed. S 275

JOHN A. RAPANOS, et ux., et al., Petitioners v. UNITED STATES JUNE CARABELL, et al., Petitioners v. UNITED STATES ARMY CORPS OF ENGINEERS, et al.

Subsequent History:  [****1] On remand at, Remanded by Carabell v. United States Army Corps of Eng'rs, 217 Fed. Appx. 431, 2007 U.S. App. LEXIS 6835 (6th Cir.) (6th Cir., 2007)


Carabell v. United States Army Corps of Eng'rs, 391 F.3d 704, 2004 U.S. App. LEXIS 24904 (6th Cir. Mich., 2004)United States v. Rapanos, 376 F.3d 629, 2004 U.S. App. LEXIS 15354 (6th Cir. Mich., 2004)

Disposition: Vacated and remanded.


wetlands, waters, adjacent, navigable waters, plurality, tributaries, pollutant, regulations, River, site, streams, nexus, ditch, cases, intermittent, navigable, Lake, drain, clean water, isolated, flows, channels, water quality, flood, downstream, connected, body of water, surface, fill, ecological

Environmental Law, Natural Resources & Public Lands, Wetlands Management, Business & Corporate Compliance, Clean Water Act, Enforcement, Civil Penalties, Criminal Prosecutions, Water Quality, Wetlands, Coverage & Definitions, Discharges, Navigable Waters, Pollutants, Discharge Permits, Dredged & Fill Material, General Overview, Point Sources, Governments, State & Territorial Governments, Legislatures, Real Property Law, Zoning, Local Governments, Ordinances & Regulations, Legislation, Interpretation, Securities Law, Blue Sky Laws, Federal Preemption, Courts, Authority to Adjudicate