Appealed from: Sixth Circuit Court of Appeals
Oral argument: February 21, 2006
private property rights, environmental protection, wetlands, clean water act, hydrological connection
Rapanos and Carabell are two land developers that planned to construct housing complexes on wetlands on their properties. The Army Corps of Engineers, however, asserted jurisdiction over the wetlands under the Clean Water Act because ground water on Rapanos' property and a ditch on Carabell's property connected the respective wetlands to a navigable body of water. The developers now argue that the Corps' interpretation of the Clean Water Act to reach wetlands on their property was unreasonable and that the Army Corps of Engineers cannot regulate the wetlands at issue. Alternatively, the developers argue that the Corps’ broad jurisdiction over the wetlands at issue is inconsistent with the Commerce Clause.
[Question(s) presented] | [Issue(s)] | [Facts] | [Discussion] | [Analysis]
Rapanos v. United States of America
1. Does the Clean Water Act prohibition on unpermitted discharges to "navigable waters" extend to nonnavigable wetlands that do not even abut a navigable water?
2. Does extension of Clean Water Act jurisdiction to every intrastate wetland with any sort of hydrological connection to navigable waters, no matter how tenuous or remote the connection, exceed Congress' constitutional power to regulate commerce among the States?
Carabell v. United States Army Corps of Engineers
1. Does the Clean Water Act extend to wetlands that are hydrologically isolated from any of the "waters of the United States?"
2. Do the limits on Congress' authority to regulate interstate commerce preclude an interpretation of the Clean Water Act that would extend federal authority to wetlands that are hydrologically isolated from any of the "waters of the United States?"
1. Under the authority of the Clean Water Act, may the Army Corps of Engineers regulate wetlands that are not in close proximity to “navigable waters” of the United States?
2. May the federal government regulate wetlands based solely on the presence of a hydrological connection—such as water on the surface of the ground—between the wetlands and “navigable waters” of the United States?
Sixty-nine year old John Rapanos, a prolific land developer, owns three parcels of land totaling approximately 715 acres. Brief for the United States at 10. In 1988, Rapanos explored the possibility of building a shopping center on one of the parcels—the Salzbury site. Id. at 10. The Michigan Department of Natural Resources (DNR) cautioned Rapanos that the site likely contained federally regulated wetlands, but that he might be able todevelop the site if he identifiedthe wetlands and refrained from discharging pollutants into them or obtained a permit to fill them. Id. at 10. Wetlands are areas flooded or saturated by surface or ground water to an extent that typically allows hydrophilic plants to grow. 33 CFR § 328.3(b). Wetlands may include swamps, marshes, bogs, and other similar areas. Id. Rapanos had little regard for wetlands and thought that the Salzbury site was merely a cornfield filled with drainage ditches. Wetlands Desperado. Without a permit, he unloaded truckloads of sand onto the wetlands, choking vegetation and despoiling the forested ecosystem. See Brief for the United States at 10. Despite a cease-and-desist letter from the DNR and a compliance order from the Environmental Protection Agency (EPA) Rapanos continued developing on the site, arguing that the regulations he was allegedly violating were arbitrary and heavy-handed. Id. at 10; How Wetlands Bureaucrats Crush Private Property Rights. Between 1988 and 1997, Rapanos’s development eradicated 79% of wetlands at the Salzburg site, impairing the wetlands’ ability to improve water quality and control floods. Id. at 10.
Rapanos’s disregard for the DNR and EPA orders prompted the Government to file civil and criminal suits in 1994. In the civil suit, the district court promptly found that Rapanos violated Section 301 of the Clean Water Act (CWA). One issue the court resolved was whether the Army Corps of Engineers (Corps)—the entity empowered to implement the CWA—had authority to regulate the wetlands on Rapanos’s three sites. Section 301 allows the Corps to regulate “navigable waters of the United States,” including all waters that ebb and flow with the tide. However, the wetlands were neither navigable waters under the Corps traditional interpretation of the term, nor were they adjoining such waters—they were at least eleven miles from the closest navigable waters, the Kawkawlin River. Brief for the United States at 11. Still, the court found that the Corps had regulatory authority because the wetlands on the three sites had a “significant nexus” to the tributaries of these rivers. Id. at 13. This nexus was the surface water between the wetlands and the tributaries, which formed a “hydrological connection.” Id. at 14. The court’s finding was affirmed in July 2004 at the Sixth Circuit Court of Appeals, which held that a hydrological connection was sufficient to sustain the Corps’ jurisdiction, despite the lack of physical proximity between the wetlands and the tributaries. Id.
Concurrent to the civil suit, the Government filed a criminal suit against Rapanos. Although Rapanos was convicted, the judge declined to imprison him and, instead, condemned him to pay $185,000 in fines and three years of probation. U.S. v. Rapanos, 235 F.3d 236, 259-60 (6th Cir. 2000).
Carabell is another land developer whose case has been consolidated with Rapanos’s for arguments before the Supreme Court. Carabell applied to the Michigan Departmentof Environmental Quality (DEQ) for permission to fill a 15.96 acre wetland. Brief of Corps at 7. The wetland is adjacent to a ditch, which connects to the Sutherland-Oemig drain. Id. at 8. Water from the drain flows into the Auvase Creek, which in turn flows into Lake Clair, part of the Great Lakes drainage system and a regulated navigable water of the United States. Id. at 8. According to Carabell, the wetland on his site has no hydrological connection to any other body of water since a manmade berm separates the wetland from the Sutherland-Oemig drain. Brief for Carabell at 5. However, the Corps denied Carabell’s application to fill the wetland, and the Sixth Circuit affirmed on grounds that a “significant nexus” existed between the wetland and the ditch, which flows one way or another into navigable waters. Brief of Corps at 13. Accordingly, Carabell is seeking review from the Supreme Court.
Rapanos and Carabell’s protracted disputes with the Federal Government typify the tension between private property rights and environmental protection. In favor of strengthened private property rights are real estate developers, ranchers, farmers, and other businesses whose operations are stymied by federal restrictions on local land use. These entities argue that in many instances it is too burdensome to determine whether a “hydrological connection” exists between a wetland and a navigable body of water, especially one located ten or twenty miles away from the wetland. Indeed, because it is difficult to trace the ultimate destination of free flowing water, everyday agricultural activities, including crop and livestock production and pest control, could be subject to federal regulations if the activities result in the deposit of pollutants into a wetland or roadside ditch that flows into a navigable body of water. Amicus Brief of Croplife America et. al. at 12. The Court’s decision will also affect many real estate developers, who perceive the Corps’ permit requirements as another layer of bureaucracy on an already towering pile of municipal and state regulations on wetlands. Amicus Brief of Charles R. Johnson at 4. Developers worry that the costs of complying with federal permit requirements could deter many developers from proceeding with otherwise worthwhile development projects. Id. at 5.
On the other hand, environmentalists, prominent scientists, and numerous States have appeared in full force to support the hydrological connection rule. Several States and the District of Columbia emphasize the unique ability of federal regulations to help reduce the level of pollutants that travel between states. Brief of New York et. al. at 3. For instance, pollutants discharged into tributaries of rivers or hydrologically connected wetlands will often affect the waters of a downstream state. Id. at 3. Without federal regulations, the downstream state must impose disproportionate limits on in-state sources of pollution to offset pollutants from upstream states. Id. at 4. Further, according to prominent scientists the outcome of this case also threatens to reduce ecologically-functional wetlands into dilapidated wastelands. See Brief of Jared Diamond et. al. Intact wetlands not only provide an obvious source of usable water and habitat for wildlife, but store floodwater to reduce the adverse effects of floods, control erosion of topsoil, and filter sediments and pollutants from surface and ground water. Id. at 7; Amicus Brief of American Planning Association at 4. To be sure, had more coastal wetlands surrounding Louisiana been preserved, the devastating impact of Hurricane Katrina’s storm surge would have been reduced. Matthew Swibel, Road Map to Disaster, Forbes.com, Sept. 7, 2005. Thus, wetlands benefit millions of people who demand clean water from the kitchen faucet, who face the threat of acute flooding after heavy rainfalls, who have ever spent an afternoon chasing frogs or dragonflies, or who simply value sharing these benefits with future generations. These are only a handful of the many reasons that compel some people to designated wetlands as the most overworked of the underappreciated natural resources.
Rapanos and Carabell are seeking to establish that wetlands on their respective properties, only connected to navigable bodies of water by drains or ditches, are not protected by the Clean Water Act (CWA), 33 U.S.C. § 1251. The parties have taken different routes to the Supreme Court—Rapanos is defending against civil charges brought by the Government for filling fifty-four acres of land without a permit, in contravention of the CWA, while Carabell is on the offensive, appealing the Corps' denial of his permit application. However, both cases raise the same issues, and the Supreme Court has chosen to hear them together.
The arguments in this case are premised upon principles of administrative law that guide the operation of government agencies. As agencies, the EPA and Corps have limited discretion in interpreting and enforcing statutes passed by Congress, including the CWA,see Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842–45 (1984),since under the strict terms of the Constitution, Congress is the only body that can legislate. See U.S. Const. art. I, § 1. However, line drawing in this area is murky and Congress has given government agencies the freedom to interpret and implement very broadly worded statutes. See Chevron, 467 U.S. at 842. When courts are asked to review an agency's interpretation of a statute, they have generally applied the Chevron doctrine and will defer to an agency's interpretation of a statute if that interpretation is reasonable and not in conflict with the expressed intent of Congress. See 467 U.S. at 842–45.
A. The Clean Water Act
The Clean Water Act (CWA) regulates the discharge of pollutants into the "navigable waters of the United States," 33 U.S.C. § 1251. Under the CWA, discharge of materials must be accompanied by a permit—for dredge and fill materials, a permit issued by the Army Corps of Engineers; for other pollutants, a permit from either the Environmental Protection Agency (EPA) or from a State agency approved under the National Pollutant Discharge Elimination System (NPDES). 33 U.S.C. § 1344 (a), (g).
Like many agencies, the Corps has been charged with providing a detailed working definition of a vague term in a statute—here, the term "navigable waters" in the CWA. Pursuant to this duty, the Corps has defined "navigable waters" expansively to include some waters, such as tributaries, clearly outside the plain meaning of the term "navigable" and not large enough to allow the passage of ships. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 171 (2001)(“SWANCC”). The Corps has also read the CWA to regulate certain wetlands. Wetlands are protected under 33 C.F.R. § 381(a)(5) if they can be classified as small streams leading to traditional navigable waters, or more directly under 33 C.F.R. § 328(a)(7) if they are immediately adjacent to navigable waters. However, these two provisions are ultimately limited by the principle established by the Supreme Court that wetlands must have a "significant nexus," or connection, with traditional navigable waters to be protected by the CWA. See SWANCC, 531 U.S. at 167.
The key issue in this case is whether the "significant nexus" requirement can be met by wetlands that have some connection to navigable waters a distance away, or whether the requirement confines the Corps' jurisdiction to wetlands immediately adjacent to navigable waters. See SWANCC, 531 U.S. at 167. The Supreme Court has explored the scope of the Corps’ authority under the CWA over wetlands on two previous occasions. In United States v. Riverside Bayview Homes, the Court affirmed the Corps’ authority over wetlands immediately adjacent to "navigable waters." See 474 U.S. 121 (1985). However, in SWANCC,the Court refused to significantly extend the Corps’ jurisdiction over wetlands, finding that the Corps’ strayed outside their authority by employing the Migratory Bird Rule and attempting to regulate isolated and abandoned sand pits with permanent and seasonal ponds. See 531 U.S. at 173. The Court held that the use of these ponds by migratory birds was not a sufficient basis for their regulation under the CWA. Id. at 173.
In this case, Rapanos stresses that the wetlands on his property lie up to twenty miles from navigable waters, and, therefore, cannot satisfy the "significant nexus" requirement. On the other hand, the Government argues that wetlands connected by surface water to navigable waters should sensibly be regulated under the CWA since pollution from such wetlands can readily flow downstream into navigable waters. See Brief for the United States at 19. The Government further argues that wetlands connected to navigable waters can be regulated as being adjacent to navigable waters since they are part of the same aquatic system. See Brief for the United States at 34. To these arguments, Rapanos responds that it was Congress' vision in drafting the CWA that the task of regulating upstream waters, such as the wetlands at issue, falls to the States and is outside the jurisdiction of federal agencies, which are responsible for the navigable waters downstream. See Brief for Rapanos at 10.
B. Commerce Clause
In addition to violating the "significant nexus" requirement, Rapanos also argues that interpreting the CWA to extend to wetlands not abutting "navigable waters" would run afoul of the limits of the Commerce Clause. See Brief for Rapanos at 23.Under the Commerce Clause, any regulation by Congress must fall into one of three broad categories: the use of channels of interstate commerce; the instrumentalities, persons, or things used in interstate commerce; and activities that "substantially affect" interstate commerce. United States v. Lopez, 514 U.S. 549, 558. Rapanos maintains that the mere hydrological connection between the wetlands on his property and navigable waters fails to qualify under the "substantial effects" test of Lopez. See Brief for Rapanos at 23. On the other hand, the Government argues that regulating wetlands connected to navigable waters falls within Congress's authority under the first category, as it is equivalent to directly regulating the navigable waters—a channel of interstate commerce. See Brief for the United States at 41–42. This argument is premised on the fact that water from the wetlands finds its way into navigable waters. Failing this, the Government also argues that their authority over such wetlands is proper under the third category as such regulation would be over activities that substantially affect interstate commerce. See Id. at 44.
In deciding this case, the Supreme Court will clear up some of the muddied waters left behind by the Riverside Bayview and SWANCC decisions. 474 U.S. 121; 531 U.S. 159. In the former, the Court upheld the Corps’ reading of "navigable waters" under the CWA to include wetlands that were immediately adjacent to traditional navigable waters, but in the latter, the Corps’ attempt to regulate isolated ponds was denied. See Riverside Bayview, 474 U.S. 121; SWANCC, 531 U.S. 159. Somewhere in between these two extremes are the wetlands at issue in this case—wetlands that are far away from navigable waters, but have hydrological connections to that body.
All developers around the country have an important stake in the outcome—a decision in their favor would alleviate the threat of messy litigation to determine whether wetlands on their developments meet the loose standard of having a "hydrological connection" with navigable waters. However, perhaps no single person has a bigger emotional and financial stake in the outcome than Rapanos himself, who has fought a twenty-one-year battle with the Government and has millions of dollars in fines and the potential forfeiture of his property looming over him.
The Government and environmentalists provide practical arguments for federal regulation of wetlands connected to navigable waters, as pollution from developments on wetlands can readily flow downstream, and federal regulation may be the best means of monitoring such developments. However, the legal standard that will likely be employed here by the Court, set previously in SWANCC, requires a "significant nexus" between the wetlands to be regulated and a body of navigable water. It seems unlikely that the Court will find that wetlands having a mere surface connection to navigable waters a distance away can meet this standard. See 531 U.S. at 167. Further, the Court may also be motivated to strike down this "hydrological connection" rule because of the difficulty that lower courts have had in applying the rule in actual disputes.
Prepared by: Ya-Wei Li and Euwyn Poon
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