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Law School Case Brief

Rapanos v. United States - 547 U.S. 715, 126 S. Ct. 2208 (2006)


The United States Army Corps of Engineers' current regulations interpret "the waters of the United States" to include, in addition to traditional interstate navigable waters, 33 C.F.R. § 328.3(a)(1) (2004), all interstate waters including interstate wetlands, § 328.3(a)(2); all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce, § 328.3(a)(3); tributaries of such waters, § 328.3(a)(5); and wetlands adjacent to such waters and tributaries (other than waters that are themselves wetlands), § 328.3(a)(7). The regulation defines "adjacent" wetlands as those bordering, contiguous to, or neighboring waters of the United States. § 328.3(c). It specifically provides that 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.


The Clean Water Act ("CWA") made it unlawful to discharge dredged or fill material into "navigable waters" without a permit, and defined "navigable waters" as the "waters of the United States, including the territorial seas." The Army Corps of Engineers (Corps), which issued permits for the discharged of dredged or fill material into navigable waters, interpreted "the waters of the United States" expansively to include not only traditional navigable waters, but also other defined waters, tributaries of such waters, and wetlands adjacent to such waters and tributaries. The present cases involved four Michigan wetlands located near ditches or man-made drains that eventually emptied into traditional navigable waters. In the first case, the United States brought civil enforcement proceedings against defendants John A. Rapanos and others who had deposited fill material without a permit into some wetlands. A federal district court found that the wetlands in question were within federal jurisdiction as adjacent to other waters of the United States, and held defendants liable for violations of the CWA. A federal appellate court affirmed that judgment. In the second case, after plaintiffs June Carabell and others had been denied a permit to deposit fill material in a wetland, and after administrative appeals had been exhausted, plaintiffs filed a lawsuit in federal district court challenging the exercise of federal regulatory jurisdiction over the wetland. The district court ruled that there was federal jurisdiction, on the basis that the wetland was adjacent to neighboring tributaries of navigable waters, and had a significant nexus to waters of the United States. Petitioners challenged the decision. The same appellate court in the Rapanos case affirmed the district court's judgment. Both the Rapanos and Carabell litigants were grated writs of certiorari, which were consolidated for review.


Did the appellate court employ the correct CWA analysis in both cases?




The Supreme Court of the United States vacated the judgments in both cases and remanded for further proceedings. The Court held the CWA phrase "the waters of the United States" included only relatively permanent, standing or continuously flowing bodies of water "forming geographic features" described in ordinary parlance as streams, oceans, rivers, and lakes. The phrase did not include intermittent or ephemeral channels, or channels that periodically provided drainage for rainfall. On remand, the lower court was instructed to determine whether the ditches or drains near each wetland were "waters" in the ordinary sense of containing a relatively permanent flow and whether the wetlands in question had a continuous surface connection to bodies that were "waters of the United States" in their own right.

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