Rapanos v. United States
The Supreme Court threw out two rulings that let the Army Corps of Engineers regulate Michigan wetlands connected to navigable rivers only through ditches and drains, but the nine justices could not agree on why, splitting into three different legal tests.
Because no opinion won a majority, lower courts and property owners were left to figure out for themselves which of two competing standards -- a stricter one from four justices or a broader one from Justice Kennedy -- controls whether a wetland counts as a federally protected water.
“The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
Scalia's plurality explains why ditches and dry channels do not count as federally protected waters.
How it got here: Federal trial courts and the Sixth Circuit ruled for the government in both cases, finding the wetlands were within Clean Water Act jurisdiction; the landowners asked the Supreme Court to review both rulings together.
The Case in Depth
What happened
John Rapanos filled in wetlands on land he owned near Midland, Michigan, without a federal permit, after being warned the land contained regulated wetlands connected to navigable rivers through ditches. In a separate case, the Carabells were denied a permit to fill wetlands near Lake St. Clair that were separated from a drainage ditch by a small artificial berm. Both landowners argued their properties were too disconnected from any real river or lake to be federally regulated "waters of the United States."
The question before the Court
Could the federal government require a permit before filling wetlands that connect to a navigable river only through a ditch or drain, rather than touching it directly?
Why it matters
Anyone who wants to fill or develop wetlands near a stream, drain, or ditch now faces genuine uncertainty about whether they need a federal permit, since courts have split over which of two tests from this case applies. That uncertainty affects farmers, homebuilders, and businesses nationwide, as well as the Army Corps of Engineers' ability to prevent pollution and flooding.
What changes now
Both cases were sent back to the lower courts to apply a legal standard the Court itself could not agree on. Because Justice Kennedy's opinion supplied the fifth vote for vacating and remanding, most lower courts subsequently treated his 'significant nexus' test as controlling, though some also allow jurisdiction if the plurality's stricter test is met. The uncertainty prompted years of confusion until later regulatory and judicial efforts tried to clarify which wetlands are federally protected.
What this does not decide
No opinion in this case commanded a majority of the Court, so it did not establish one clear, binding legal test for which wetlands are federally protected. Lower courts have since disagreed about whether Justice Kennedy's 'significant nexus' test, the plurality's stricter test, or either one satisfied, controls future cases.
Concurrences and dissents
Concurrence — Justice Roberts
Chief Justice Roberts agreed with vacating the judgments but lamented that no opinion commanded a majority, leaving lower courts and regulated parties to work things out case by case. He noted the Corps could have avoided this outcome by revising its regulations after the Court's earlier SWANCC decision instead of maintaining its broad view of its own authority.
Concurrence — Justice Kennedy
Justice Kennedy agreed the cases should be sent back but rejected both the plurality's permanence-based test and the dissent's near-total deference to the Corps. He would require the Corps to show, on a case-by-case basis, that a wetland has a 'significant nexus' to a genuinely navigable water by significantly affecting its chemical, physical, or biological quality, since the Corps' existing standard for tributaries swept too broadly.
Dissent — Justice Stevens
“Rejecting more than 30 years of practice by the Army Corps, the plurality disregards the nature of the congressional delegation to the agency and the technical and complex character of the issues at stake.”Stevens's central objection that the plurality abandoned decades of agency practice without justification.
Justice Stevens argued the Court's 1985 Riverside Bayview decision already resolved these cases in the government's favor, and that the plurality's new permanence and continuous-surface-connection requirements have no support in the statute's text or purpose. He would have deferred to the Corps' three-decade-old practice of regulating wetlands adjacent to tributaries and affirmed the Corps' jurisdiction in both cases.
Dissent — Justice Breyer
Justice Breyer wrote separately to argue that Congress intended the Clean Water Act to reach the full limits of its power to regulate interstate commerce, and that the Army Corps of Engineers -- not the courts -- should define the outer bounds of 'waters of the United States' through updated regulations, which he urged the agency to write promptly.
How the Court got there
The legal reasoning, step by step
- Justice Scalia's four-justice opinion read the phrase 'waters of the United States' using its dictionary meaning, concluding it covers only relatively permanent bodies of water like rivers, lakes, and continuously flowing streams -- not ditches or channels that carry water only sometimes.
- Applying that definition, the plurality held that a wetland only counts as a covered water if it has a continuous surface connection to a relatively permanent water body, so close that it is hard to tell where the water ends and the wetland begins.
- Justice Kennedy, providing the fifth vote to send the cases back, rejected the plurality's permanence requirement and instead revived a 'significant nexus' standard from an earlier case (SWANCC), asking whether a wetland -- alone or together with similar nearby wetlands -- significantly affects the chemical, physical, or biological quality of a genuinely navigable water downstream.
- Kennedy concluded the Army Corps' blanket practice of treating any wetland next to any tributary as covered, no matter how small or remote, was too broad, and that the agency must show a significant nexus case by case absent more specific regulations.
- Because neither the lower court nor the agency had evaluated the wetlands under either the plurality's continuous-connection test or Kennedy's significant-nexus test, five justices agreed the correct legal question had never actually been asked, requiring further proceedings under the proper standard.
Doctrinal impact
Cases affected by this decision
Limits United States v. Riverside Bayview Homes, Inc. (474 U. S. 121)
The plurality narrowed this 1985 ruling to cover only wetlands directly touching a permanent water body, not merely nearby ones.
Reaffirms SWANCC (531 U. S. 159)
Both the plurality and Kennedy relied on this case's 'significant nexus' language, though they interpreted it very differently.