Supreme Court ‘Muddies’ Wetlands Law

Published August 1, 2006

On June 19 a divided U.S. Supreme Court ruled the U.S. Army Corps of Engineers must show a significant nexus between a wetland and a navigable body of water in order to assert regulatory control under the Clean Water Act.

At issue were two separate cases in which Michigan land owners sought to develop “wetlands” they owned.

In the first, John Rapanos was told he could not develop his land, although the site in question was more than 20 miles from the nearest body of water. The second case concerned June Carabell, who sought to develop land she owned that is connected to Lake St. Clair via a series of man-made ditches. In both cases the Army Corps ruled the land qualified as wetlands, and thus could not be developed without a permit from the Corps.

A Court Divided

Justice Antonin Scalia wrote an opinion for four justices asserting the Clean Water Act’s definition of “navigable waters” applies to “relatively permanent, standing or flowing” waters “with a continuous surface connection” to navigable waters.

Justice John Paul Stevens wrote an opinion for four justices asserting the Clean Water Act’s definition of “navigable waters” applies to any parcel of land or water that drains to or is in the extended watershed of navigable waters.

Justice Anthony Kennedy, representing only himself but controlling the outcome of the case by virtue of his tie-breaking vote, took the middle ground, asserting the Clean Water Act’s definition of “navigable waters” applies to any parcel of land or water that has a “significant nexus” to navigable waters, such that the parcel at issue is significant enough “to perform important functions for an aquatic system incorporating navigable waters.”

Scalia: ‘Beyond Parody’

Scalia adamantly argued the Army Corps exceeded its authority in denying the respective landowners use of their property.

Scalia noted that if the Army Corps’ broad interpretation of “waters of the United States” was invoked, it would put every drop of water that falls on the ground in the hands of the federal government. In effect, Scalia pointed out, “this would place the federal government in the role of land use czar.”

Scalia disagreed with the Army Corps’ use of the term “waters of the United States,” and he emphatically stated the Corps took an overly expansive reading of the term. He wrote, “In applying the definition to ‘ephemeral streams,’ ‘wet meadows,’ ‘storm sewers and culverts’ … man-made drainage ditches and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody.”

Stevens: Deference to Corps

Stevens argued the courts should defer to the Army Corps’ interpretation of the Clean Water Act. In addition to asserting deference to the executive branch, Stevens accused the Scalia opinion of “antagonism to environmentalism” that “needlessly jeopardizes the quality of our waters.”

Kennedy: ‘Significant Nexus’

Most legally significant in the case was Kennedy’s wayward opinion in which he advanced the notion of a “significant nexus” to determine if lands fall within the jurisdiction of the Army Corps.

Kennedy noted that in nature, isolated wetlands serve a valuable function as water recharge areas. Often a wetlands miles from a river is connected below the ground, something referred to as a “hydrologic connection.”

According to Kennedy, jurisdictional arguments over wetlands stem from whether the land significantly interacts with or is isolated from “navigable waters.” Therefore, according to Kennedy, the 6th Circuit Court of Appeals incorrectly used the overbroad definition of “navigable waters” asserted by Stevens. Accordingly, the cases must be sent back to the lower courts to determine whether such a significant nexus existed.

Few Satisfied with Opinion

Court watchers and all parties in the cases appeared stunned–or confused–by the Court’s 4-1-4 decision. Although the Court vacated and sent the cases back to the 6th Circuit Court of Appeals, the splintered decision fails to advance common law to clarify wetlands jurisdiction.

Rebecca Wodder, president of American Rivers, one of the organizations that filed a friend of the court brief in support of the Army Corps, asserted in a news release, “The Supreme Court leaves protection of clean water law in this country in a horrible muddle with this decision.”

A similar position was echoed by the Sierra Club’s president, Carl Pope. “We are concerned that, as Chief Justice Roberts laments, the ‘lower courts and regulated entities will now have to feel their way on a case-by-case basis.'”

Property Rights at Risk

Property rights supporters largely tried to emphasize the positive in the Court’s decision.

“Today’s ruling delivers a welcome victory by curtailing federal regulators’ overbroad reading of their wetlands regulatory powers,” legal analyst Patrick Wright explained in a Mackinac Center news release.

To most of the Rapanos supporters, private property is at the center of the legal storm. Cato Institute’s Tim Lynch and Mark Moller explained the Court’s reasoning this way: “If the government can regulate any land from which water occasionally drains, no matter how speculative the effect of this drainage on navigable water, wetlands law gives it almost limitless jurisdiction over private property.”

“We are delighted with this ruling It is about time that the Court stop these out-of-control bureaucrats who thumb their noses at congressional intent,” observed Mountain States Legal Foundation President William Perry Pendley.

Jeff Edgens, Ph.D. ([email protected]) is director of research for the Bluegrass Institute for Public Policy Solutions in Bowling Green, Kentucky.

For more information …

The 70-page text of the U.S. Supreme Court’s June 19 decision in John A. Rapanos v. United States and June Carabell v. United States Army Corps of Engineers is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to, click on the PolicyBot™ button, and search for document #19391.