547 U.S. 715, 126 S. Ct. 2208, 165 L. Ed. 2d 159 (2006)
In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and 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.1
Regulators had informed Mr. Rapanos that his saturated fields were waters of the United States that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.2
The Rapanos petitioners deposited fill material without a permit into wetlands on three sites near Midland, Michigan: the Salzburg site, the Hines Road site, and the Pine River site. The wetlands at the Salzburg site are connected to a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and Lake Huron. The wetlands at the Hines Road site are connected to the Rose Drain, which has a surface connection to the Tittabawassee River. The wetlands at the Pine River site have a surface connection to the Pine River, which flows into Lake Huron.3 It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent.4
The United States brought civil enforcement proceedings against the Rapanos petitioners. The District Court found that the three described wetlands were within federal jurisdiction because they were adjacent to other waters of the United States, and held petitioners liable for violations of the CWA at those sites. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed, holding that there was federal jurisdiction over the wetlands at all three sites because there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters.5
Petitioners in the consolidated case, the Carabells, were denied a permit to deposit fill material in a wetland located on a triangular parcel of land about one mile from Lake St. Clair. A man-made drainage ditch runs along one side of the wetland, separated from it by a 4-foot-wide man-made berm. The berm is largely or entirely impermeable to water and blocks drainage from the wetland, though it may permit occasional overflow to the ditch. The ditch empties into another ditch or a drain, which connects to Auvase Creek, which empties into Lake St. Clair.6 After exhausting administrative appeals, the Carabell petitioners filed suit in the District Court, challenging the exercise of federal regulatory jurisdiction over their site. The District Court ruled that there was federal jurisdiction because the wetland is adjacent to neighboring tributaries of navigable waters and has a significant nexus to waters of the United States. The Sixth Circuit affirmed, holding that the Carabell wetland was adjacent to navigable waters.7 The Supreme Court granted certiorari and consolidated the cases.8
Whether the phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features described in ordinary parlance as streams, oceans, rivers, and lakes?
The CWA authorizes federal jurisdiction only over waters. The use of the definite article and plural number shows that the phrase refers more narrowly to water as found in streams, oceans, rivers, and lakes.9 Those terms connote relatively permanent bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows.10 The traditional understanding of navigable waters and the policy of preserving state authority over land use confirm this limitation.11
No. The established facts show that the Rapanos wetlands are connected to man-made drains and ditches that may have intermittent flows and are 11 to 20 miles from navigable waters. The Carabell wetland is separated by an impermeable berm from a drainage ditch. These facts demonstrate that the connections are not relatively permanent bodies of water forming geographic features. The Corps' interpretation would cover these intermittent channels, which the rule excludes.12
Upon the facts, in April 1989, John A. Rapanos began backfilling wetlands on his Michigan property intended for development, a parcel encompassing 54 acres with sometimes-saturated soil conditions located 11 to 20 miles from the nearest navigable water.13 Regulators had previously informed him that these saturated fields constituted waters of the United States that could not be filled without a permit, setting in motion twelve years of criminal and civil litigation.14 Subsequently, the Rapanos petitioners deposited fill material without permits into wetlands on three sites near Midland, Michigan—the Salzburg site, the Hines Road site, and the Pine River site—each connected through man-made drains and ditches to tributaries that eventually reach traditional navigable waters such as the Kawkawlin River, the Tittabawassee River, and Lake Huron. It remained unclear whether these connections were continuous or intermittent.15
In the consolidated Carabell case, petitioners were denied a permit to deposit fill in a wetland on a triangular parcel about one mile from Lake St. Clair, where a man-made drainage ditch ran along one side separated by a 4-foot-wide impermeable berm that blocked drainage except for possible occasional overflow.16 The ditch connected through other drains to Auvase Creek and ultimately to Lake St. Clair.17 After exhausting administrative appeals, the Carabells sued in District Court, which found jurisdiction because the wetland was adjacent to neighboring tributaries and had a significant nexus to waters of the United States; the Sixth Circuit affirmed the adjacency finding. The Supreme Court granted certiorari and consolidated the cases to resolve the scope of federal jurisdiction under the Clean Water Act.18
The phrase "the waters of the United States" does not include the wetlands at issue under the Corps' expansive interpretation.19
Related opinions on this issue
Chief Justice Roberts concurred to emphasize that five years after SWANCC the Corps had failed to issue clarifying regulations despite the Court's rejection of its boundless view of jurisdiction.20 He noted that the agencies initiated but abandoned a rulemaking, leaving lower courts and regulated entities to proceed case by case without guidance.21 This failure produced another defeat for the agency and created uncertainty that could have been avoided by proper administrative action following the earlier decision.22
Roberts stressed that the Corps' adherence to an expansive interpretation without refinement produced the current litigation and left the scope of the Act unclear for future cases.
Justice Kennedy concurred in the judgment but rejected the plurality's limitations.23 He concluded that the Corps' jurisdiction extends to wetlands possessing a significant nexus to navigable waters in the traditional sense, assessed in light of the Act's goals of restoring chemical, physical, and biological integrity.24 Kennedy explained that wetlands have the requisite nexus if they, alone or in combination with similarly situated lands, significantly affect the integrity of other covered waters.25
He found the Corps' adjacency-to-tributaries theory overbroad and required case-by-case analysis when regulating wetlands adjacent to nonnavigable tributaries.26 Kennedy would remand for application of this standard because the records suggested possible significant nexuses that lower courts had not properly evaluated.27
Whether a wetland may be considered adjacent to remote waters of the United States based on a mere hydrologic connection?28
A wetland may not be considered adjacent to remote waters of the United States based on a mere hydrologic connection.29 Riverside Bayview rested on an inherent ambiguity in defining where the water ends and its abutting wetlands begin, permitting the Corps to rely on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters.30 Isolated ponds are not waters of the United States in their own right, and present no boundary-drawing problem justifying the invocation of such ecological factors. Thus, only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are adjacent to such waters and covered by the Act.
No. The established facts show that the Rapanos wetlands have connections via drains and ditches that may be intermittent and remote, and the Carabell wetland is separated by an impermeable berm with only possible occasional overflow.31 These facts demonstrate no continuous surface connection making it difficult to determine where the water ends and the wetland begins.32 The Corps' adjacency theory based on mere hydrologic connection therefore fails.33
A wetland may not be considered adjacent to remote waters of the United States based on a mere hydrologic connection.
Related opinions on this issue
Joined by Justices Souter, Ginsburg, And Breyer
Justice Stevens dissented, joined by Justices Souter, Ginsburg, and Breyer.34 He argued that the Corps' interpretation of adjacent wetlands as waters of the United States is a quintessential example of reasonable agency construction entitled to Chevron deference.35 Stevens emphasized that Riverside Bayview squarely controls these cases because the wetlands are adjacent to tributaries of traditionally navigable waters.36
He stressed that Congress had acquiesced in the Corps' broad jurisdiction in 1977 and that the regulations advance the Act's purpose of protecting water quality through functions such as pollutant trapping, flood control, and habitat provision.37 Stevens criticized the plurality for judicially amending the statute and disregarding thirty years of consistent administrative practice and enforcement.38
Justice Breyer dissented separately to underscore that Congress intended the Corps' authority to extend to the limits of the commerce power.39 He argued that the intricate interconnection of the Nation's waters makes broad statutory language necessary, with the agency left to narrow its reach through regulation or permitting.40 Breyer noted that the Corps is best positioned to make the complex technical judgments required and urged the agency to issue new regulations promptly to clarify jurisdiction and avoid ad hoc judicial determinations that convert scientific questions into matters of law.41
Whether the Army Corps of Engineers' expansive interpretation of the waters of the United States is based on a permissible construction of the Clean Water Act?42
The Corps' expansive interpretation of the waters of the United States is not based on a permissible construction of the Clean Water Act.43 The phrase includes only relatively permanent bodies of water, and the Corps' reading stretches the statute beyond its text, structure, and the policy of preserving primary state responsibility over land and water resources. Even if ambiguous, clear-statement rules require a manifest statement from Congress to intrude on traditional state land-use authority or to push the outer limits of the commerce power.
No. The established facts show that the Rapanos and Carabell wetlands involve connections through man-made drains, ditches, and a berm that may be intermittent or blocked, far from traditional navigable waters.44 These facts demonstrate that the Corps' interpretation would regulate land features not constituting waters under the statutory text.45 The interpretation therefore exceeds permissible construction.46
The Army Corps of Engineers' expansive interpretation of the waters of the United States is not based on a permissible construction of the Clean Water Act.47
Whether the Sixth Circuit applied the correct standard to determine whether the wetlands at issue are covered waters of the United States?48
Because the Sixth Circuit applied an incorrect standard to determine whether the wetlands at issue are covered waters, and because of the paucity of the record, the cases are remanded for further proceedings.49 The correct standard requires finding that the adjacent channel contains a relatively permanent water of the United States and that each wetland has a continuous surface connection to that water.50
No. The established facts show that the Sixth Circuit relied on hydrological connections without determining whether the drains and ditches contained relatively permanent flow or whether the wetlands had continuous surface connections.51 These facts demonstrate that the lower court applied an incorrect standard. The cases must therefore be remanded.52
The Sixth Circuit did not apply the correct standard to determine whether the wetlands at issue are covered waters of the United States.53