Nation's High Court Divides Sharply Over Reach of Clean Water Act

A divided U.S. Supreme Court limited the scope of the U.S. Army Corps of Engineers' authority under the Clean Water Act to block private development that could affect wetlands (Rapanos vs. United States, No. 04-1034, June 19, 2006).

In a 5-4 decision, the nation's high court found that the Corps exercised undue regulation in attempting to prevent the development of two Michigan landowners' properties.

The Supreme Court case combined two disputes, Carabell vs. United States and United States vs. Rapanos, which are on appeal from the U.S. Court of Appeals for the Sixth Circuit. Both cases, which involved Michigan property slated for development, addressed whether the Clean Water Act protects wetlands adjacent to small tributaries that flow into larger water bodies. In the Rapanos case, the developer began filling in wetlands in three Michigan counties without a permit. The 54 acres of wetlands are connected to tributaries that flow into either Lake St. Clair or Lake Huron. The developer was found liable for the wetlands destruction under the Clean Water Act by the Sixth Circuit Court of Appeals.

In the Carabell case, the developer wanted to build condo units on 19 acres of land in Macomb County, Mich., about 15 of which was forested wetlands. The Carabell wetlands are adjacent to a tributary that flows to Lake St. Clair. A permit for the development was issued by the Michigan Department of Environmental Quality, but the Corps intervened and ordered the permit be denied. The developer then brought suit alleging the wetlands were not covered by the Clean Water Act.

The high court's reasoning was split. A majority ruled that only permanent bodies of waters, such as major lakes and rivers, and directly abutting wetlands are protected by the Clean Water Act.

Justice Antonin Scalia, writing for the majority, stated that "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."

Justice Anthony Kennedy, in a concurring opinion, found that the Clean Water Act protected waters with a "significant nexus" to other waters, and that ecological factors such as flood control could create such a nexus. While Justice Kennedy disagreed with the majority's narrow view of scope of the Clean Water Act, he was not convinced that the lower court had found a "significant nexus" had been established for the waters at issue. The cases were remanded to the Sixth Circuit Court for further deliberations.

"The confusion caused by this split decision can be clarified if Congress or the administration acts to protect all our country's waters," said Jim Murphy, wetlands counsel for the National Wildlife Federation. "If the court thinks current law is not adequate to protect all waters, then Congress should amend the law to encompass all wetlands, streams, lakes, rivers and other important waters."

The opinion can be accessed at the U.S. Supreme Court's Web site:

Featured Webinar