This Supreme Court case dealt with the extent of the Army Corps of Engineers’ (“Corps”) regulatory authority over the nation’s wetlands under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA”). Pursuant to the CWA, a permit must be obtained from the Corps before dredged or fill material may be discharged into “navigable waters.” Id., §1344(a), (c), (d); discharge without such a permit can lead to criminal or civil liability. Id., § 1319. “Navigable waters” are defined by the CWA as “the waters of the United States, including the territorial seas.” Id. §1362(7). The extent to which this definition embraces the nation’s wetlands has been a vexed question. Although initially construing its wetland jurisdiction narrowly, the Corps has more recently sought to extend its wetland jurisdiction under the CWA to virtually all wetlands and adjacent “buffer” zones nationwide. The result has been a costly, duplicative regulatory regime for wetlands that are not adjacent to navigable waters and which are already regulated by state and local authorities.
Before the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”), the Corps claimed that any wetland that was used as a habitat by migratory birds (in other words, virtually every wetland) qualified as “navigable waters” under the CWA. After SWANCC, the Corps adopted as an alternative the expansive “hydrologic connection” theory, under which a wetland is “navigable waters” if water flows from it, whether intermittently or indirectly, through ground water or surface water, to navigable or tidal waters. Under this approach, approximately 80% of all wetlands in the United States would be within the Corps’ jurisdiction. Based on this “hydrologic connection” theory, a federal district court in Michigan and the Sixth Circuit found the Rapanoses liable under the CWA for grading and filling without a Corps permit three wetland parcels that were remote from navigable or tidal waters.
The Supreme Court granted certiorari to determine whether, in asserting jurisdiction over the Rapanoses’ wetlands, the Corps had again exceeded its authority. On behalf of itself and co-amicus Charles Johnson, a cranberry farmer in Carver, Massachusetts, who faces liability under the CWA for similar activities, NELF filed an amicus brief urging the Supreme Court to reject the “hydrologic connection” theory in favor of the Fifth Circuit’s interpretation of the CWA, which would limit the Corps’ regulatory authority to wetlands that are adjacent to actual navigable waterways. NELF argued that the virtually unlimited authority claimed by the Corps created an onerous and unnecessary duplication of already existing state and local wetlands regulations. NELF argued that, when it enacted the CWA, Congress never intended this result, which has prevented, or added significantly to the costs of, useful land development in areas where local authorities have considered it to be permissible.
On June 19, 2006, the Supreme Court split 4-1-4 in the case, failing to draw a bright line limiting the Corps’ authority. Four justices—Scalia, Thomas, Roberts, and Alito—concurred in the plurality opinion reversing the Sixth Circuit. Agreeing with NELF, these justices defined “navigable waters” to include only relatively permanent, standing, or flowing bodies of water, and their contiguous wetlands. Justice Kennedy joined in the judgment remanding the case in a separate (and, thereby, controlling) opinion. He found that the test for “navigable waters” is whether they have a “significant nexus” to “waters that are navigable in fact or that could reasonably be so made” and concluded that “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 126 S.Ct. at 2248. The four dissenting Justices—Breyer, Souter, Stevens, and Ginsburg—would have deferred completely to the Corps. Justices on both sides of the issue noted that the Court’s inability to reach a majority position will require ”[l]ower courts and regulated entities. . .to feel their way on a case-by-case basis.” Id. at 2236 (Roberts, C.J., concurring); See Id. at 2264–2265 (Stevens, J., dissenting) (similar).