Rapanos v. United States
The United States brought civil charges against the Rapanos, who own property in several counties in Michigan, alleging that they illegally discharged fill material into protected wetlands in violation of the Clean Water Act (CWA) in an attempt to make the land more conducive to development After a trial, the district court found that the Rapanos had filled 54 acres of land that qualify as wetlands under the CWA. The CWA requires landowners to obtain permits before they discharge fill material into “navigable waters.” Congress has defined “navigable waters” as “waters of the United States, including the territorial seas.” The Army Corps of Engineers has defined “waters of the United States” to include wetlands "adjacent" to other waters of the United States. The district court relied on the Corps’ regulation as supporting CWA jurisdiction over the Rapanos' lands. It found that the Rapanos' wetlands had "surface connections" to tributaries of traditional navigable waters, and thus were "adjacent" wetlands.
On appeal, Rapanos argued that the disturbed wetlands were not "adjacent" wetlands subject to the CWA because they had only a surface connection to waters of the United States and the CWA only governs wetlands that directly abut navigable waters. The Sixth Circuit Court of Appeals affirmed the district court, holding that the CWA has jurisdiction over wetlands that have a "significant nexus" to waters of the United States and that there is no requirement in the CWA that the wetlands directly abut navigable waters of the United States.
Carabell v. Army Corps of Engineers:
The Carabells appeal the denial by the Army Corps of Engineers of a permit to fill and develop their wetlands property into a condominium development. The Carabells own 15.96 acres of wooded wetlands in Michigan, approximately one mile northwest of Lake St. Clair. A ditch runs along one border of the property; when the ditch was excavated, the "spoils" were cast to either side of the ditch, creating manmade berms approximately four feet wide along the banks of the ditch. The berm edging the Carabells’ property blocks the immediate drainage of surface water out of the parcel into the ditch. The ditch connects to the Sutherland-Oemig Drain, which empties into the Auvase Creek, which empties into Lake St. Clair, which is part of the Great Lakes drainage system.
The CWA requires landowners to obtain permits from the Corps before they discharge fill material into “navigable waters.” Congress has defined “navigable waters” as “waters of the United States, including the territorial seas.” The Corps has defined “waters of the United States” to include wetlands "adjacent" to other waters of the United States. The Sixth Circuit Court of Appeals held that the Carabells' property contains wetlands adjacent to neighboring tributaries of navigable waters of the United States. Specifically, the Carabells' property is separated only by a manmade berm from a ditch that connects to the Sutherland-Oemig Drain, which connects to Lake St. Clair. Accordingly, the Carabells’ property is not isolated from waters of the United States but constitutes “adjacent wetlands” within the meaning of the CWA.
Questions Presented
Rapanos v. United States:
1. Does the Clean Water Act prohibition on unpermitted discharges to "navigable waters" extend to non navigable 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. 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?"
Decisions under Review:
Rapanos v. United States
Carabell v. Army Corps of Engineers
