The United States brought suit against John Rapanos, a real estate developer, for illegally discharging fill into wetlands in violation of the Clean Water Act. The United States District Court for the Eastern District of Michigan entered judgment in favor of the United States, and the Sixth Circuit Court of Appeals affirmed the lower court’s decision.
In a separate action, property owner June Carabell, whose request for a permit to fill wetlands was denied, sought judicial review of that denial under the Administrative Procedure Act (APA). The United States District Court for the Eastern District of Michigan granted summary judgment for the government, and the United States Court of Appeals for the Sixth Circuit affirmed.
The Supreme Court granted certiorari to consider the scope of federal regulatory jurisdiction under the Clean Water Act, and consolidated the two cases. In a fractured 4-1-4 decision, a four-Justice plurality interpreted the term “waters of the United States” as covering “relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters, as well as wetlands with a continuous surface connection to such water bodies.
The plurality noted that its reference to “relatively permanent” waters “d[id] not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.” Justice Kennedy, concurring, interpreted the term “waters of the United States” to include wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”
The four dissenting Justices, who would have affirmed the court of appeals’ application of the pertinent regulatory provisions, concluded that the term “waters of the United States” encompasses, inter alia, all tributaries and wetlands that satisfy either the plurality’s standard or that of Justice Kennedy.