University News
Constitution Day: America's Wetlands a Private or Public Concern?
September 19, 2006
Wetlands Protection and The Clean Water Act
Rapanos v. United States
By Greg Hall, History
The United States Supreme Court heard two wetlands protection cases last term which had important implications for the application of the Clean Water Act (CWA). In Rapanos v. United States, the federal government brought charges against the Rapanos family for violating the CWA when they released fill material into protected wetlands on their Michigan property. The CWA required landowners to obtain permits before discharging fill material into navigable waters that Congress has defined to be waters of the United States. The court relied upon the Army Corps of Engineers which determined that wetlands that are adjacent to such waters are covered by the CWA when they have surface connections. The Rapanos appealed the case on the grounds that surface connections were not sufficient in that the CWA only governed wetlands that were directly connected to navigable waters. However, the Sixth Circuit Court of Appeals agreed with the lower court. In Carabell v. Army Corps of Engineers, the Carabells were denied a permit to fill wetlands on their Michigan property. Although the landowners site is separated by an earthen barrier, their ditch emptied into a ditch which fed into a creek that eventually deposits into Lake St. Clair; thus covered by the CWA because Lake St. Clair is navigable water. The Carabells argued that their isolated wetland was not adjacent to the waters of the United States, thereby disqualifying CWA jurisdiction. They lost in both the district and appeals court. Both of these cases were then heard together by the Supreme Court.
The major question to be answered by the Court is whether the phrase waters of the United States in the CWA includes wetlands that intermittently feed into a tributary of navigable water and in the Carabell case even when the wetland is blocked by an artificial barrier. The Court was divided 4-1-4 on the consolidated cases. Writing the plurality opinion was Justice Scalia, who was joined by Justices Thomas, Alito and the Chief Justice. He rejected the lower courts decision arguing that the CWA is only relevant to wetlands when they have a continuous surface connection with navigable water, making it difficult to determine where a wetland ends and a water begins. Justice Kennedy concurred with Scalia in a separate opinion, though he disagreed with much of his reasoning. Kennedy argued that a significant nexus between a wetland and a water is covered by the CWA if there are serious implications for water quality. In the Carabell case with more evidence such a connection may be established. Writing the dissent was Justice Stevens, who was joined by Justices Souter, Ginsburg, and Breyer. Stevens upheld the interpretation of the Act, arguing that all wetlands regardless of their direct or indirect connection to navigable waters were covered by the CWA because the Acts goal is to reduce pollution in the countrys waters. With the Court unable to find a majority on the case, it was sent back to the Sixth Circuit to be reexamined using a different analysis.
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Sept. 19, 2006 - Wetlands Protection and The Clean Water Act: Rapanos v. United States
By Greg Hall, History
Sept. 20, 2006 - In Imposing the Death Penalty, Does the "Tie" Go to the Defendant?
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Posted By: University Communications (U-Communications@wiu.edu)
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