Rapanos owned some wetlands that were isolated and 20
miles away from the nearest navigable waterway. In open defiance of the
law, he filled the wetlands with sand in order to build a shopping mall
without getting a permit.
The US Army Corps of Engineers (USACE) fined Rapanos for
not getting a permit.
The Clean Water Act §301 prohibits damage to
"navigable waters" without a permit (issued by the US Army
Corps of Engineers, pursuant to §404).
Rapanos was convicted in a criminal trial and was forced
to pay millions of dollars in civil penalties. He appealed the civil
penalties.
Rapanos argued that since the wetlands were not connected
to a navigable waterway, they were not covered under the Clean Water
Act and he could do whatever he wanted with his own land.
USACE argued that, based on the ruling in United
States v. Riverside Bayview Homes, Inc. (474 U.S. 121 (1985)), any
waters that USACE said were covered were covered.
The Appellate Court affirmed. Rapanos appealed.
At the same time, a developer named Carabell had sought a
permit to build condominiums on 19 acres of wetlands, but the request was
denied by the USACE.
Carabell sued, arguing that the Federal government did
not have jurisdiction.
The Trial Court found that the Federal government had
jurisdiction. Carabell appealed.
The Appellate Court affirmed. Carabell appealed.
The US Supreme Court combined the two cases.
The US Supreme Court overturned the Appellate Court
decisions and ruled that the USACE did not have jurisdiction.
The US Supreme Court was sharply split. While they were
able to come to a 5-4 decision about reversing the judgments against
Rapanos and Carabell, they were unable to come to a majority decision on
the details of where the jurisdictional limits should be drawn.
The plurality of Justices looked to the plain language of
the Clean Water Act found that the term "navigable
waters" in the Clean Water Act could be extended to waters
which were connected to navigable waters, but not isolated bodies of
water that were not directly connected.
"The only plausible interpretation of the phrase
'the 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."
The plurality looked to their decision in Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers (531
U.S. 159 (2001)) and recognized that if there were a significant
nexus between the wetland and a navigable body of water, it could be
covered under the Clean Water Act, but in these cases, the
wetlands were well isolated.
A wetland that is adjacent to a navigable water, or
connected by a continuous surface flow would constitute a significant
nexus, in Scalia's opinion.
In a concurring opinion, Justice Kennedy disagreed with
the plurality on what exactly constitutes a significant nexus.
Kennedy felt that the USACE should be allowed to go back
to the lower courts and introduce evidence that could establish that
there was a significant nexus.
In a concurring opinion, Justice Roberts suggested that
the USACE go back and issued a regulation clarifying exactly how far they
felt that §404 reached. If they did that, then the courts would
have to give USACE deference.
Since there were no published regulation or guidelines,
the courts did not have to defer to USACE's case by case analysis.
In a dissent, it was suggested that the Courts go back to
the deference they used in Riverside, which basically said that
waters covered under the act include any waters that the USACE reasonably
concludes may affect the water quality of adjacent lakes rivers and
streams, even when the waters of those bodies are not directly connected
to a navigable waterway.
