Like the Swamp Thing: Something Ambiguous Rises from the Hidden Depths of Murky Waters-The Supreme Court's Treatment of Murky Wet Land in Rapanos v. United States

This article is dedicated to my mother; trees were her favorite part of the natural landscape. I would like to thank Professor Kenneth Murchison for his assistance and advice in preparing this article.

I. Introduction

Breaking news: "Developers, bureaucrats and environmentalists still are seeking answers on what is a wetland subject to regulation after the U.S. Supreme Court punted on the matter Monday in a case that involved Midlander John Rapanos."1

In 1989, the Michigan Department of Environmental Quality2cited developer John Rapanos for filling thirty acres of wetlands without a § 404 Clean Water Act permit.3 The wetlands, which Rapanos cleared to develop a shopping mall, were on a 175 acre piece of property twenty miles from Lake St. Clair.4 Four years later, the United States indicted Rapanos on two federal criminal charges for continuing to fill the wetlands in spite of an Environmental Protection Agency (EPA) cease-and-desist work order.5 Rapanos was fined $185,000 and sentenced to three years of probation and 200 hours of community service.6 Fourteen years later, in 2003, the U.S. Circuit Court of Appeals for the Sixth Circuit upheld Rapanos' conviction on two counts of polluting wetlands without a permit.7 In 2004, the Supreme Court denied certiorari to hear Rapanos' criminal case.8

In 1994, the United States also began a civil case against Rapanos.9 The district court, in 2000, found that Rapanos had filled a total of fifty-four acres of protected wetlands over which the Army Corps of Engineers (Corps) had jurisdiction.10 On appeal, the Sixth Circuit affirmed.11 After seventeen years of protracted civil and criminal litigation and a denial of certiorari in the criminal trial, the Supreme Court granted certiorari to hear Rapanos' civil case.12 The Court consolidated Rapanos with another Sixth Circuit case, Carabell v. U.S. Army Corps of Engineers, another case in which the appellate court had granted the Corps jurisdiction over a particular wetland area.13

The Supreme Court vacated the judgments of the Sixth Circuit.14 All of the Justices agreed that the Corps possibly had jurisdiction over Rapanos' and Carabell's wetlands. If so, it was a violation of the Clean Water Act for Rapanos to fill the wetlands without getting a permit and a proper exercise of jurisdiction for the Corps to deny a fill permit to the Carabells. Five Justices voted to remand the case back to the Sixth Circuit to determine if the Rapanos and Carabell wetlands fell within the statutory framework.15

The Justices divided three ways, however, on what was necessary in order to find jurisdiction.16 In Rapanos, four members of the Court found that the Corps has jurisdiction over a non-navigable wetland, and thus a fill permit is required only if the wetland is both adjacent to and has a surface hydrological connection with a traditionally permanent navigable body of water.17 Four others found that the Corps has jurisdiction over a non-navigable wetland that is adjacent to a navigable body of water or a tributary of such a water body.18 Justice Kennedy found that the Corps has jurisdiction over any wetland with a significant hydrological connection (nexus) to a navigable body of water or a navigable tributary.19

Part II of this note discusses the background leading up to the Supreme Court's 2006 Rapanos decision. Understanding the scope of the decision requires an examination of the Clean Water Act's fill permit requirements and two previous cases interpreting those requirements. Part III discusses the decision in detail, including the differing views of the plurality, the dissent, and Justice Kennedy. Part IV analyzes the impact of the Court's murky decision, including the disorganized state of the law following the decision and its impact on other Clean Water Act provisions. The Note concludes with a discussion of the likely result on remand, the options available to remedy the problem by regulatory change, and the possible adoption of a recent Senate bill to amend the Clean Water Act in light of Rapanos.

II. Background

A. Overview Of The Clean Water Act

The crucial issue in Rapanos was the scope of the Corps' jurisdiction over wetlands under the Federal Water Pollution Control Act (Clean Water Act, or CWA). Passed in 1972, the objective of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."20 21 In order to accomplish this goal, a primary focus of the CWA is to eliminate the discharge of pollutants into navigable waters.22 By the 1960s, previous regulation had left the nation's waters alarmingly deteriorated.23 A two-year water quality study indicated that previo...

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