Supremes Navigate Water Law

In the absence of a clear majority ruling, the U.S. Supreme Court has left murky the reach of the federal government in defining what is a navigable waterway subject to enforcement under the 1972 Clean Water Act. With four justices standing with Antonin Scalia in an opinion that would loosen the Army Corps of Engineers' definition of regulated waters; four on the other side, joining the opinion of John Paul Stevens, which would allow the Corps' more broad definition to stand; and lone Justice Anthony Kennedy in the middle, calling for individual determinations of whether a disputed property has a "significant nexus" to CWA-protected navigable waters, the court's latest weighing of the CWA portends a future of additional regulatory battles and likely talk of amending the act.

At issue before the court were two cases (consolidated by the court) involving Michigan property owners wanting to develop parcels of property that were in part made up of wetland. (In one case a property owner ignored official notice that three of his parcels likely contained protected wetland; without obtaining a CWA permit, John Rapanos cleared and backfilled the land in question. In the second case, property owner June Carabell sued the government after the Corps denied her a permit to backfill a piece of property in order to build condominiums.) In each case, the property owners charged that the Corps had overstepped its jurisdiction by claiming jurisdiction to regulate its properties even though none of them had a direct and immediate connection to any navigable body of water. (Each property was found, however, to have an eventual connection – Rapanos' properties drain to Lake Huron and Carabell's drains to Lake St. Clair, the court noted.)

In each case, a federal district court found the Corps had the jurisdiction to decide the case, rulings later affirmed by the 6th U.S. Court of Appeals in Ohio. The Supremes heard the case in February and took nearly four months to reach what could be considered, at best, a fractured ruling. Scalia (joined by Chief Justice John Roberts, Clarence Thomas, and newbie Samuel Alito) argued that the idea that the Corps could draw a regulatory connection between the wetland areas in question and navigable waterways was "beyond parody," and that in deciding such cases the Corps "exercises the discretion of an enlightened despot." Indeed, Scalia wrote that under the Corps' definition, "the entire land area of the U.S. is in some drainage basin," which would mean that any "plot of land containing such a channel may potentially be regulated as a 'waterway of the United States.'"

Under Scalia's interpretation, the Corps should only be allowed to invoke the CWA to regulate land with a direct connection to a "relatively permanent body of water" that has a "continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins." On the other side of the debate, Stevens (joined by David Souter, Ruth Bader Ginsburg, and Stephen Breyer) argued that the CWA's scope extends to wetland properties adjacent to all "identifiable tributaries that ultimately drain into large bodies or water," including tributaries that are, at times, dry.

With the battle lines drawn on a four-four split, Kennedy's solitary opinion lays out a (temporary) compromise. He agreed with the Scalia wing that the two cases in question should be sent back to the lower courts for further deliberation, but disagreed that only "permanent" water bodies are subject to CWA regulation. "Contrary to [Scalia's] description … wetlands are not simply moist patches of earth," Kennedy wrote. By definition, a wetland must be adjacent to a tributary and "thus covered by the Act, even if they are 'separated from other waters … by man-made dikes or barriers, natural river berms, beach dunes and the like.'" Thus, Kennedy wrote, the question of whether a wetland (or other similar property) is suitable for CWA regulation is whether the "specific wetlands … possess a significant nexus with navigable waters" (a question the lower courts will have to decide in both cases).