Rapanos v. United States

Background

These cases involve Michigan landowners who damaged or sought to fill wetlands near man-made ditches and drains that ultimately flow toward larger lakes and rivers. The Army Corps of Engineers had told them the sites were “waters of the United States,” requiring permits. Federal district courts and the Sixth Circuit found the wetlands covered by the Clean Water Act and sided with the Government. The landowners appealed and the Supreme Court consolidated their challenges.

Reasoning

The central question was how broad the phrase “waters of the United States” is under the Clean Water Act. A plurality of the Court, led by Justice Scalia, held that the phrase covers only relatively permanent waters—streams, rivers, lakes, and similar features—and does not include intermittent ditches or ephemeral channels. The plurality ruled that a wetland is covered only if it has a continuous surface connection to such a permanent water. Because the Sixth Circuit used a different test and the record lacked detail, the plurality vacated the judgments and sent the cases back for more factfinding. Justice Kennedy concurred in the judgment but proposed a different rule: wetlands are covered when they have a “significant nexus” to traditional navigable waters by substantially affecting those waters’ chemical, physical, or biological integrity. He also called for remand to apply that test.

Real world impact

The decision creates near-term uncertainty for developers, farmers, local regulators, and the Corps because it narrows one route for federal jurisdiction but leaves the matter open for additional fact-based review. It may reduce federal reach over some intermittent channels and nearby wetlands, but the rulings were not final and can change on remand. Agencies, landowners, and courts will need more case-level evidence about connections between wetlands and larger waters.

Dissents or concurrances

Justice Stevens (joined by three Justices) would have upheld the Corps’ broader approach. Chief Justice Roberts and Justice Breyer also wrote separate opinions supporting broader deference in different ways.