Rapanos v. United States
Encyclopedia
Rapanos v. United States, 547 U.S. 715
(2006), was a United States Supreme Court
case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act
. It was the first major environmental case heard by the newly appointed Chief Justice
, John Roberts
and Associate Justice
, Samuel Alito
. The Supreme Court heard the case on February 21, 2006 and issued a decision on June 19, 2006. While five justices agreed to void rulings against the plaintiffs, who wanted to fill their wetlands to build a shopping mall and condos, the court was split over further details, with the four more conservative justices arguing in favor of a more restrictive reading of the term "navigable waters" than the four more liberal justices. Justice Kennedy
did not fully join either position.
) and June Carabell whose separate projects were stopped because of the environmental regulations that make up the Clean Water Act.
In the late 1980s, Rapanos filled 22 acres (89,030.9 m²) of wetland
that he owned with sand in preparation for the construction of a mall without filing for a permit. He argued that the land was not a wetland and that he was not breaking the law, but his own consultant and state employees disagreed. Rapanos' land is up to 20 miles (32.2 km) from any navigable waterways. However, the term "navigable waterway" has been broadly interpreted by the U.S. Environmental Protection Agency
to include areas connected to or linked to waters via tributaries or other similar means. Rapanos was convicted of two felonies for filling wetlands in violation of law in 1995. The conviction was overturned and restored several times but, in the end, he was forced to serve three years of probation and pay $5,000 in fines. Eventually, Rapanos appealed the civil case against him, which included millions of dollars of fines, to the Supreme Court of the United States.
Carabell, who was involved in the associated case Carabell v. United States Army Corps of Engineers, did seek a permit to build condominiums on 19 acres (76,890.3 m²) of wetlands, but the request was denied. Carabell took the issue to the courts, arguing that the federal government did not have jurisdiction. After losing in the Federal District Court and the Sixth Circuit Court of Appeals
, Carabell appealed to the United States Supreme Court.
governs discharges to "navigable waters." Although the law contains language defining navigable waters as "waters of the United States," the U.S. Supreme Court rejected the position of the Army Corps of Engineers that its authority over water was essentially limitless under the Clean Water Act.
In Rapanos v. United States, the Supreme Court clarified that the term "waters of the United States" "includes only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] ... oceans, rivers, [and] lakes.'"
All waters with a "significant nexus" to "navigable waters" are covered under the CWA; however, the words "significant nexus" remains open to judicial interpretation and considerable controversy. Some regulations included water features such as intermittent streams, playa lakes, prairie pothole
s, sloughs
and wetland
s as "waters of the United States"
In Rapanos v. United States, the Army Corps of Engineers applied that broad definition, seeking millions of dollars in fines and penalties from John A. Rapanos in Michigan who drained and filled 22 acres (89,030.9 m²) of wetland with sand despite warnings from the Michigan Department of Natural Resources (MDNR), the advice of his own private consultant, a cease-and-desist letter from the MDNR, and finally an administrative compliance order from the EPA. The Army Corps of Engineers claimed that by filling the wetland he had discharged a pollutant into the "waters of the United States." The US. Supreme Court rejected that position in a 4-1-4 plurality, holding that isolated wetlands could not be considered "waters of the United States" for purposes of the CWA.
The plurality opinion states that the Clean Water Act confers federal jurisdiction over non-navigable waters only if they exhibit a relatively permanent flow, such as a river, lake, or stream. In addition, a wetland is jurisdictional if there exists a continuous surface water connection between it and a relatively permanent waterbody, such that it is difficult to determine where the waterbody ends and the wetland begins.
Justice Kennedy’s concurrence takes a different approach, holding that a wetland or non-navigable waterbody falls within the Clean Water Act’s ambit if it bears a "significant nexus" to a traditional navigable waterway. Such a nexus exists where the wetland or waterbody, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway.
To date, seven federal appellate courts have been presented with the issue of which Rapanos jurisdictional test is controlling. The Fifth Circuit in United States v. Lucas and the Sixth Circuit in United States v. Cundiff ultimately avoided the question, because those courts determined that the evidence presented was adequate to support federal jurisdiction under either standard. The Seventh Circuit in United States v. Gerke, the Ninth Circuit in Northern California River Watch v. City of Healdsburg, and the Eleventh Circuit in United States v. Robison held that Justice Kennedy’s opinion (the "substantial nexus" test) is controlling. The First Circuit in United States v. Johnson and the Eighth Circuit in United States v. Bailey held that jurisdiction may be established under either Rapanos test. One district court has held that the Rapanos plurality opinion (the "continuous surface water connection" test) is controlling.
As Chief Justice Roberts anticipated, the courts adopting the Kennedy standard have done so by invoking Marks. Under Marks, a split decision’s binding legal rule is found in the opinion taken by the concurring justices on the narrowest grounds, which has been interpreted as meaning the opinion that is the “logical subset” of the other opinions in the case. As applied to Rapanos, Marks dictates that if either the plurality or the Kennedy test is a subset of the other, then that test is controlling. The appellate courts that have followed the Kennedy test have concluded that it is a logical subset of the Rapanos plurality test and therefore binding. The appellate courts that have adopted both Rapanos tests—the First and Eighth Circuits—have concluded that the Marks rule does not apply to Rapanos and that both tests are equally valid. The Supreme Court has denied petitions for writ of certiorari in six of the seven circuit court cases addressing the Rapanos split-decision question. (The Bailey appellant did not file a petition). It is therefore unlikely that the Supreme Court will clarify this question in the near future.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2006), was a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act
Clean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
. It was the first major environmental case heard by the newly appointed Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
, John Roberts
John Roberts
John Glover Roberts, Jr. is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist...
and Associate Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
, Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
. The Supreme Court heard the case on February 21, 2006 and issued a decision on June 19, 2006. While five justices agreed to void rulings against the plaintiffs, who wanted to fill their wetlands to build a shopping mall and condos, the court was split over further details, with the four more conservative justices arguing in favor of a more restrictive reading of the term "navigable waters" than the four more liberal justices. Justice Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
did not fully join either position.
Prior history
The case involves developers John A. Rapanos (Midland, MichiganMidland, Michigan
Midland is a city in the U.S. state of Michigan in the Tri-Cities region of the state. It is the county seat of Midland County. The city's population was 41,863 as of the 2010 census. It is the principal city of the Midland Micropolitan Statistical Area....
) and June Carabell whose separate projects were stopped because of the environmental regulations that make up the Clean Water Act.
In the late 1980s, Rapanos filled 22 acres (89,030.9 m²) of wetland
Wetland
A wetland is an area of land whose soil is saturated with water either permanently or seasonally. Wetlands are categorised by their characteristic vegetation, which is adapted to these unique soil conditions....
that he owned with sand in preparation for the construction of a mall without filing for a permit. He argued that the land was not a wetland and that he was not breaking the law, but his own consultant and state employees disagreed. Rapanos' land is up to 20 miles (32.2 km) from any navigable waterways. However, the term "navigable waterway" has been broadly interpreted by the U.S. Environmental Protection Agency
United States Environmental Protection Agency
The U.S. Environmental Protection Agency is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress...
to include areas connected to or linked to waters via tributaries or other similar means. Rapanos was convicted of two felonies for filling wetlands in violation of law in 1995. The conviction was overturned and restored several times but, in the end, he was forced to serve three years of probation and pay $5,000 in fines. Eventually, Rapanos appealed the civil case against him, which included millions of dollars of fines, to the Supreme Court of the United States.
Carabell, who was involved in the associated case Carabell v. United States Army Corps of Engineers, did seek a permit to build condominiums on 19 acres (76,890.3 m²) of wetlands, but the request was denied. Carabell took the issue to the courts, arguing that the federal government did not have jurisdiction. After losing in the Federal District Court and the Sixth Circuit Court of Appeals
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
, Carabell appealed to the United States Supreme Court.
Holding
The Clean Water ActClean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
governs discharges to "navigable waters." Although the law contains language defining navigable waters as "waters of the United States," the U.S. Supreme Court rejected the position of the Army Corps of Engineers that its authority over water was essentially limitless under the Clean Water Act.
In Rapanos v. United States, the Supreme Court clarified that the term "waters of the United States" "includes only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] ... oceans, rivers, [and] lakes.'"
All waters with a "significant nexus" to "navigable waters" are covered under the CWA; however, the words "significant nexus" remains open to judicial interpretation and considerable controversy. Some regulations included water features such as intermittent streams, playa lakes, prairie pothole
Prairie pothole
The Prairie Pothole Region is an area of the northern Great Plains and midgrass and tallgrass prairies that contains thousands of shallow wetlands known as potholes. These potholes are the result of glacier activity in the Wisconsin glaciation, which ended approximately 10,000 years ago...
s, sloughs
Swamp
A swamp is a wetland with some flooding of large areas of land by shallow bodies of water. A swamp generally has a large number of hammocks, or dry-land protrusions, covered by aquatic vegetation, or vegetation that tolerates periodical inundation. The two main types of swamp are "true" or swamp...
and wetland
Wetland
A wetland is an area of land whose soil is saturated with water either permanently or seasonally. Wetlands are categorised by their characteristic vegetation, which is adapted to these unique soil conditions....
s as "waters of the United States"
In Rapanos v. United States, the Army Corps of Engineers applied that broad definition, seeking millions of dollars in fines and penalties from John A. Rapanos in Michigan who drained and filled 22 acres (89,030.9 m²) of wetland with sand despite warnings from the Michigan Department of Natural Resources (MDNR), the advice of his own private consultant, a cease-and-desist letter from the MDNR, and finally an administrative compliance order from the EPA. The Army Corps of Engineers claimed that by filling the wetland he had discharged a pollutant into the "waters of the United States." The US. Supreme Court rejected that position in a 4-1-4 plurality, holding that isolated wetlands could not be considered "waters of the United States" for purposes of the CWA.
The plurality opinion states that the Clean Water Act confers federal jurisdiction over non-navigable waters only if they exhibit a relatively permanent flow, such as a river, lake, or stream. In addition, a wetland is jurisdictional if there exists a continuous surface water connection between it and a relatively permanent waterbody, such that it is difficult to determine where the waterbody ends and the wetland begins.
Justice Kennedy’s concurrence takes a different approach, holding that a wetland or non-navigable waterbody falls within the Clean Water Act’s ambit if it bears a "significant nexus" to a traditional navigable waterway. Such a nexus exists where the wetland or waterbody, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway.
Interpretation
Because no single Rapanos opinion garnered a majority of the justices’ votes, it is unclear which opinion sets forth the controlling test for wetlands jurisdiction. Chief Justice Roberts observed that the lower courts would likely look to Marks v. United States to guide them in applying the competing Rapanos standards. Marks provides that, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Justice Stevens, writing the principal Rapanos dissent, suggested that lowers courts could use either the plurality’s or Justice Kennedy’s test, because both tests would command the support of at least five justices.”To date, seven federal appellate courts have been presented with the issue of which Rapanos jurisdictional test is controlling. The Fifth Circuit in United States v. Lucas and the Sixth Circuit in United States v. Cundiff ultimately avoided the question, because those courts determined that the evidence presented was adequate to support federal jurisdiction under either standard. The Seventh Circuit in United States v. Gerke, the Ninth Circuit in Northern California River Watch v. City of Healdsburg, and the Eleventh Circuit in United States v. Robison held that Justice Kennedy’s opinion (the "substantial nexus" test) is controlling. The First Circuit in United States v. Johnson and the Eighth Circuit in United States v. Bailey held that jurisdiction may be established under either Rapanos test. One district court has held that the Rapanos plurality opinion (the "continuous surface water connection" test) is controlling.
As Chief Justice Roberts anticipated, the courts adopting the Kennedy standard have done so by invoking Marks. Under Marks, a split decision’s binding legal rule is found in the opinion taken by the concurring justices on the narrowest grounds, which has been interpreted as meaning the opinion that is the “logical subset” of the other opinions in the case. As applied to Rapanos, Marks dictates that if either the plurality or the Kennedy test is a subset of the other, then that test is controlling. The appellate courts that have followed the Kennedy test have concluded that it is a logical subset of the Rapanos plurality test and therefore binding. The appellate courts that have adopted both Rapanos tests—the First and Eighth Circuits—have concluded that the Marks rule does not apply to Rapanos and that both tests are equally valid. The Supreme Court has denied petitions for writ of certiorari in six of the seven circuit court cases addressing the Rapanos split-decision question. (The Bailey appellant did not file a petition). It is therefore unlikely that the Supreme Court will clarify this question in the near future.
See all
External links
- Court of Appeals Opinion (PDF)
- NPR story regarding the case
- History of Rapanos and the related case, Carabell (A history, starting from the US Army Corps of Engineers permit application submitted by the Carabells and the enforcement action brought by the Environmental Protection Agency against Mr. Rapanos, through the various appeals leading to this US Supreme Court decision)
- http://www.vjel.org/books/PUBS10004.html The Supreme Court and the Clean Water Act: Five Essays on the Supreme Court's Clean Water Act jurisprudence as reflected in Rapanos v. United States, published in April 2007 by the Vermont Journal of Environmental Law and the Vermont Law School Land Use Institute