Justice Kennedy's Analysis of Navigable Waters in Rapanos

January 15, 2007

Virginia S. Albrecht, Deidre G. Duncan

Five years ago in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, the Supreme Court rejected the Corps’ and EPA’s argument that isolated ponds in northern Illinois constituted “navigable waters” within the meaning of the Clean Water Act (CWA) because the ponds were used by migratory birds. The agencies’ response to SWANCC was to avoid it. Ignoring the reasoning of SWANCC, the agencies claimed that they could regulate any water that is not isolated, and continued to assert jurisdiction over any non-navigable water that had “any hydrological connection” to a navigable water. It did not matter how far the water was from navigable water, how frequently it carried water, or how much water it carried. All that mattered was that it was connected somehow to navigable water. By claiming that all “connected” waters were tributaries, the agencies erected a skeleton of “tributaries” which, they argued, provided a basis to regulate any wetland “adjacent” to the new-found tributaries.

Debating Rapanos