Community Rights Counsel Community Rights Counsel Community Rights Counsel Community Rights Counsel

About CRC

Legal Resources

Community Rights Report Newsletter

Support Us


Redefining Federalism

Warming Law Blog

Community Rights Counsel
1301 Connecticut Avenue, NW, Suite 502
Washington, DC 20036
Phone: 202-296-6889
Fax: 202-296-6895

CRC In The News


Court Leaves Wetlands In Bog of Plurality
Kennedy Alone in the Middle on Scope of Land-Use Regulation


Daily Journal
June 20, 2006

Brent Kendall, Daily Journal Staff Writer


WASHINGTON - A high-stakes U.S. Supreme Court dispute over the Clean Water Act ended in disarray Monday as no five justices could agree on the scope of federal authority to regulate wetlands, a murky ending to the first environmental case of the Roberts Court.

The court's four solidly conservative justices, in a plurality opinion by Justice Antonin Scalia, embraced a restrictive view of the regulatory power held by the Army Corps of Engineers and the Environmental Protection Agency, while the court's liberal wing took the polar opposite approach.

In the middle was the court's new swing justice, Anthony M. Kennedy, who said the conservative and liberal camps both had it wrong.

The decision offered no definitive resolution to one of the most closely watched cases of the term, a fact lamented by Chief Justice John G. Roberts Jr., a member of the conservative camp.

"It is unfortunate that no opinion commands a majority of the court," Roberts wrote in a concurring opinion. "Lower courts and regulated entities will now have to feel their way on a case-by-case basis."

The mixed outcome provided something to love and hate for environmentalists, who favor robust federal wetlands protections, and for property-rights advocates, who think that federal regulators have assumed far more power than Congress intended to give them.

"We dodged a bullet by one vote," said Joan Mulhern of the environmental public-interest law firm Earthjustice, referring to Scalia's opinion, which she described as extreme.

However, Mulhern said the ruling could embolden more challenges to the act and would lead to continued wrangling in the courts.

M. Reed Hopper of the Sacramento-based Pacific Legal Foundation, who argued the case for the Clean Water Act challengers, said he was pleased with the ruling. Kennedy and the four conservatives, he said, all believed that there should be some kind of limit on federal regulation of wetlands.

However, the court's split deprived Hopper of a clear victory.

"I think everyone is disappointed that the court did not command a particular majority," Hopper said.

At issue were two long-running disputes from Michigan where property owners sought to fill in wetlands to make way for a shopping center project and a condominium development. Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers, 2006 DJDAR 7661.

Despite the owners' protests, federal environmental regulators stepped in to block the projects, saying they would harm water quality and wildlife.

The Clean Water Act gives federal regulators authority over the "waters of the United States," and the Michigan legal fight centered on the meaning of that phrase.

The corps and the EPA have interpreted the phrase broadly to allow oversight of a wide variety of inland and intermittent water sources that could affect the quality of the country's navigable waters.

Thanks to an earlier court case, federal authorities had clear jurisdiction over wetlands adjacent to open bodies of water. What was less clear was whether they could regulate wetlands adjacent only to non-navigable tributaries - a question that implicates millions of acres.

The Michigan landowners, arguing the regulators' interpretation was too broad, said there was no way their wetlands were waters of the United States.

One property owner, John Rapanos, said the "hydrological connection" between his wetlands and any navigable body of water was so tenuous that it could not possibly trigger Clean Water Act jurisdiction.

The other owner, June Carabell, said that there was no hydrological connection between her land and any navigable water.

The 6th U.S. Circuit Court of Appeals, based in Cincinnati, ruled against both landowners. The Supreme Court's decision Monday vacated those rulings and sent the cases back for reconsideration.

Scalia, joined by Roberts and Justices Clarence Thomas and Samuel A. Alito Jr., criticized the "immense expansion" of federal regulation under the Clean Water Act over the last 30 years.

By asserting jurisdiction over man-made drainage ditches, storm sewers, wet meadows and desert arroyos, the Corps of Engineers, Scalia said, had stretched the definition of U.S. waters "beyond parody."

Federal regulators, he said, should have jurisdiction over only "relatively permanent" bodies of water and the wetlands that have a "continuous surface connection" to them.
It was Kennedy's opinion, however, that effectively became the controlling holding of the court.

Kennedy provided a fifth vote to send the cases back for reconsideration, but he rejected almost everything Scalia had to say.

Scalia's opinion, Kennedy said, was inconsistent with the text and purpose of the Clean Water Act and was "unduly dismissive" of the federal government's interests.
"Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular," Kennedy wrote.

Congress, he said, intended broader regulation of waters and wetlands than Scalia's opinion provided for.

On the other hand, Kennedy said, the Corps of Engineers relied on potentially overbroad standards for asserting jurisdiction over wetlands that were adjacent to non-navigable tributaries.

For the corps to have jurisdiction over such wetlands, he said, it must show on a case-by-case basis that there is a "significant nexus" between the wetlands and navigable waters.

That nexus would exist, he said, if the wetlands significantly affected "the chemical, physical and biological integrity" of other waters covered by the act.

Kennedy said that there was evidence suggesting the Michigan wetlands at issue would qualify for federal regulation under his nexus test.

In dissent, Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, said the court should have deferred to the judgment of the corps and the EPA.

Kennedy said Stevens' view was too deferential.

The court's badly splintered opinion is bound to cause headaches for the lower courts.

In all, the court decision totaled 99 pages and included 22 citations of the Webster's New International Dictionary, for definitions of words such as "waters" and "adjacent." Scalia, Kennedy and Stevens read their opinions from the bench, taking nearly a half hour to explain their holdings.

The ruling left enough room for both sides to claim victory.

"Today, five justices of the Supreme Court wrote or joined opinions that support broad protection for rivers, streams and wetlands under the Clean Water Act," said Douglas Kendall of the Community Rights Counsel.

On the other side was the National Federation of Independent Business.

"The court's decision affirms that the government had taken its Clean-Water-Act authority to regulate private property way too far," said Karen Harned, executive director of the federation's legal foundation.



Back to CRC Home

If you have questions or comments about this website or
Community Rights Counsel email us!

2005 Community Rights Counsel. All rights reserved.