Environs Hot Sheet -Breaking Developments in Environmental Law
06.22.2006
Supreme Court Offers No Clear Guidance in Wetlands Decision
Anyone hoping for a bright line rule from the U.S. Supreme Court on exactly when filling or
dredging a wetland requires a federal Clean Water Act permit because it is “adjacent” to
“navigable waters” probably was disappointed on June 19 when the Court issued five separate
opinions, none with a majority. In the consolidated cases of Rapanos v. U.S. and Carabell v.
Army Corps of Engineers, a bare majority voted to send both cases back to the lower court for
further consideration, but no opinion had enough votes to give any clear guidance on what rule
to apply or how. The result is that arguably marginal wetlands are still subject to regulation for
now, but it also is likely that the U.S. Army Corps of Engineers will revisit its long-shelved
revision of the rules to carve out some wetlands that might fall within the scope of the current
application of the “adjacent to navigable waters” definition.
The Rapanos case involved a family of Michigan developers who, without a permit, filled in
portions of their property. The U.S. Environmental Protection Agency (“EPA”) contended that
the filled-in portions were adjacent wetlands subject to the Clean Water Act permit
requirements, while the Rapanos argued that there was no surface water runoff into any
navigable waterway, the closest of which was 20 miles away. Carabell concerned another
Michigan developer who was denied a permit from the Army Corps of Engineers (“Corps”) to
fill in a wetland that was separated from a drainage ditch by an impermeable berm. The berm
prevented surface water from draining off the property and into the ditch that was connected to
a drain that ultimately emptied into Lake St. Clair in Detroit.
The question of what is an “adjacent wetland” subject to federal jurisdiction clearly vexed the
Court. Four justices — Scalia, Roberts, Alito and Thomas — voted to narrowly confine federal
adjacency jurisdiction to only those wetlands that have a continuous surface connection
between relatively permanent, standing or continuously flowing bodies of water, such as a
stream, ocean, river or lake, and not to channels through which water flows intermittently or
that periodically provide drainage. Four other justices, ostensibly the dissenters — Stevens,
Souter, Bryer and Ginsburg — voted to continue leaving the determination up to the Corps,
which has applied a broad definition for many years.
The ninth justice, Kennedy, literally was the swing vote — he joined in the decision of Scalia,
Roberts, Alito and Thomas to send the cases back to the court of appeals, but he wrote a
separate opinion that rejected the Scalia group’s legal basis for doing so. In his opinion, Justice
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Kennedy articulated a slightly narrower interpretation of Clean Water Act wetlands jurisdiction
than the Corps’ traditional view, one that requires a showing that a wetland significantly affects
the chemical, physical and biological integrity of other navigable waters.
As Justice Kennedy’s opinion and the four dissenters are somewhat allied, it appears a
continuing narrow majority of the Supreme Court supports a broad but ambiguous definition of
“adjacent wetlands.” For the time being, however, property owners, developers and opponents
still have no reasonably certain basis for predicting which “adjacent” wetlands are subject to
the Clean Water Act permit requirements. The upshot of the Supreme Court’s decisions in
Rapanos and Carabell is that wetlands adjacency issues will continue to be left to the lower
courts to decide on a case-by-case basis, which is a prescription for more litigation and greater
expense for all involved.
For wetlands subject to state jurisdiction, the Supreme Court’s decision will mean little, if any,
change. Under Oregon law, the Division of State Lands administers wetlands issues and its
removal-fill jurisdiction includes some artificially-created wetlands and artificially-created
stream channels or ditches with food and game fish and a connection to other natural waters.
Meanwhile, in Washington, the Department of Ecology has jurisdiction over any project calling
for fill or alteration of a wetland determined by the Corps to be isolated (i.e., outside the federal
Clean Water Act jurisdiction). Thus, no matter what happens in the wake of Rapanos, isolated
wetlands in Washington are still subject to regulation based on the broad authority of the State
Water Pollution Control Act.
For more information, please contact the Environmental Law Practice Group at:
Lane Powell PC:
(206) 223-7000 Seattle
(503) 778-2100 Portland
environs@lanepowell.com
www.lanepowell.com
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