The Rapanos Decision
January 15, 2007M. Reed Hopper, Damien Schiff
The Supreme Court has ruled in consolidated cases that the assertion of jurisdiction under the Clean Water Act (CWA) by the United States Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) is too broad. The CWA prohibits the discharge of pollutants (which include dredged and fill material) into “navigable waters” without a federal permit. The Act defines the term “navigable waters” as “waters of the United States.” That term has been interpreted to cover nearly any area over which water flows, including the shallow “wetlands” on Mr. Rapanos’s Michigan lots. Rapanos was charged with violating the CWA when he filled wetlands on his property without authorization. The district court found him liable with respect to one of his properties because the “wetlands” on that site were deemed adjacent to a tributary (i.e., a nonnavigable, man-made drainage ditch) that flowed through a series of conduits to a navigable waterway up to twenty miles away. On appeal, the Sixth Circuit Court of Appeals affirmed the district court’s determination on the basis of the “hydrological connection” theory. Under this test, CWA jurisdiction exists no matter how remote or insubstantial the connection between a wetland and a navigable-in-fact waterbody. On June 19, 2006, the Supreme Court vacated the judgments of the Sixth Circuit and remanded the cases for further proceedings.