Rapanos v. United States

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Rapanos v. United States
Seal of the United States Supreme Court.svg
Argued February 21, 2006
Decided June 19, 2006
Full case name John A. Rapanos, et ux., et al., Petitioners v. United States; June Carabell, et al., Petitioners v. United States Army Corps of Engineers, et al.
Docket nos. 04-1034
Citations 547 U.S. 715 (more)
547 U.S. 715; 126 S. Ct. 2208; 165 L. Ed. 2d 159; 2006 U.S. LEXIS 4887; 74 U.S.L.W. 4365; 62 ERC (BNA) 1481; 19 Fla. L. Weekly Fed. S 275
Prior history On writs of cert. to the U.S. Court of Appeals for the Sixth Circuit
Wetlands that have neither a hydrological nor ecological connection to other navigable waters do not fall within the jurisdiction of the Clean Water Act
Court membership
Case opinions
Plurality Scalia, joined by Roberts, Thomas, Alito
Concurrence Roberts
Concurrence Kennedy
Dissent Stevens, joined by Souter, Ginsburg, Breyer
Dissent Breyer
Laws applied
Clean Water Act

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.[1] The case was remanded to the lower court. Ultimately, Rapanos agreed to a nearly $1,000,000 settlement with the EPA while not admitting to any wrongdoing.


The case involves developers John A. Rapanos (Midland, Michigan) 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 (89,000 m2) of wetland that he owned with sand in preparation for the construction of a mall without filing for a permit.[2] 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 claimed that his land was up to 20 miles (32 km) from any navigable waterways.[3] 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.[4] Eventually, Rapanos appealed the civil case against him, which included millions of dollars of fines, to the Supreme Court of the United States.[3]

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 (77,000 m2) of wetlands, but the request was denied by the Army Corps of Engineers. 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.[3]

Opinion of the Court[edit]

The Clean Water Act 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[when?] water features such as intermittent streams, playa lakes, prairie potholes, sloughs and wetlands as "waters of the United States".[5]

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 (89,000 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.[6]

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.[7]

Subsequent developments[edit]

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[8] 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.”[9] 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.”[10]

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[11] and the Sixth Circuit in United States v. Cundiff[12] 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,[13] the Ninth Circuit in Northern California River Watch v. City of Healdsburg,[14] and the Eleventh Circuit in United States v. Robison[15] held that Justice Kennedy’s opinion (the "significant nexus" test) is controlling. The First Circuit in United States v. Johnson[16] and the Eighth Circuit in United States v. Bailey[17] 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.[18]

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.[19] 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 also[edit]


  1. ^ The New York Times http://www.nytimes.com/aponline/us/AP-Scotus-Wetlands.html.  Missing or empty |title= (help)[dead link]
  2. ^ Barringer, Felicity (2004-05-18). "Michigan Landowner Who Filled Wetlands Faces Prison". The New York Times. p. A20. 
  3. ^ a b c Greenhouse, Linda (2005-10-12). "Supreme Court Takes Up 2 Cases Challenging Powers of U.S. Regulators to Protect Wetlands". The New York Times. p. A14. 
  4. ^ Shepardson, David (2005-03-16). "Man avoids prison in land feud". The Detroit News. Retrieved 2006-06-19. [dead link]
  5. ^ Code of Federal Regulations, 33 CFR Part 328; 40 CFR 122.2;40 CFR 230.3(s).
  6. ^ http://www.supremecourt.gov/opinions/05pdf/04-1034.pdf
  7. ^ Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States. EPA, December 2, 2008. http://www.epa.gov/owow/wetlands/pdf/CWA_Jurisdiction_Following_Rapanos120208.pdf
  8. ^ 430 U.S. 188 (1977).
  9. ^ Id. at 193.
  10. ^ Rapanos, 547 U.S. at 810 n.14 (Stevens, J., dissenting).
  11. ^ 516 F.3d 316 (5th Cir. 2008)
  12. ^ 555 F.3d 200 (6th Cir. 2009)
  13. ^ 464 F.3d 723 (7th Cir. 2006)
  14. ^ 496 F.3d 993 (9th Cir. 2007)
  15. ^ 521 F.3d 1319 (11th Cir. 2008)
  16. ^ 467 F.3d 56 (1st Cir. 2006)
  17. ^ 571 F.3d 791 (8th Cir. 2009)
  18. ^ United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006).
  19. ^ See Johnson, 467 F.3d at 63-64 (citing King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)).

External links[edit]

  • Text of Rapanos v. United States, 547 U.S. 715 (2006) is available from:  Findlaw  Cornell LII 
  • 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)
  • [1] 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