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Supreme Court Passes on Post-Rapanos Opportunities to Clarify “Navigable Waters” Jurisdiction

May 9, 2007

The United States Supreme Court has denied petitions for certiorari in two cases that presented opportunities to clarify the Court’s fractured decision in Rapanos v. United States.[1] In Rapanos, a closely divided Supreme Court, by a 4:1:4 plurality, remanded to the Sixth Circuit the issue of whether the U.S. Army Corps of Engineers (“Corps”) exceeded its statutory authority under the Clean Water Act (“CWA”)[2] by requiring property owners to acquire permits before dredging and filling certain wetlands. As Chief Justice Roberts noted in his brief concurring opinion, since “no opinion command[ed] a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act[,] [l]ower courts and regulated entities will now have to feel their way on a case-by-case basis.”[3] The lower courts are now doing so without further guidance from the Supreme Court, aggravating a split in the Circuit Courts over how to apply Rapanos and increasing uncertainty over federal jurisdiction over wetlands.


The Supreme Court consolidated the Sixth Circuit’s decision in United States v. Rapanos[4]with another Sixth Circuit decision, Carabell v. United States Army Corps of Eng’rs.[5] These materials will refer collectively to the Supreme Court’s consolidated decision of the two cases as Rapanos. Both cases involved the scope of CWA jurisdiction over wetlands that developers argued were beyond the scope of federal authority.[6] Although the cases specifically involved wetlands, the opinions focused on the definition of “waters of the United States” and the associated scope of federal jurisdiction over non-navigable tributaries. Therefore, the Rapanos decision’s impact is very broad.

The CWA prohibits the discharge of pollutants, including “dredged spoil … rock, sand, [and] cellar dirt” into “navigable waters” from any point source.[7] Justice Scalia’s plurality decision in Rapanos narrowly construed the phrase “waters of the United States” to include only “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] …  oceans, rivers, [and] lakes.’”[8] Under Justice Scalia’s test, federal regulatory jurisdiction would only apply if there is a continuous surface connection between a wetland and that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.[9] Justice Kennedy rejected Justice Scalia’s test in his concurrence, and advanced a test that would require the Corps to establish a “significant nexus” between wetlands and navigable waters on a case-by-case basis.[10] Under Justice Kennedy’s test, “wetlands possess the requisite nexus, and thus come within the 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.’”[11] Justice Stevens authored a dissenting opinion, joined by three other Justices, which instructed the lower court to find jurisdiction if the United States proved jurisdiction under either test.[12] For further analysis of the Rapanos decision, see Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided.

Federal Circuits Split on Application of Rapanos

Since Rapanos, three Circuit Courts have addressed the decision. The Seventh and Ninth Circuits have concluded that the “significant nexus” analysis in Justice Kennedy’s Rapanos concurrence provides the controlling test for determining the jurisdictional boundary of the United States’ authority over water bodies and wetlands.[13] In contrast, the First Circuit departed from the other Circuit’s approach and held that the United States could assert jurisdiction over alleged Clean Water Act (CWA) violations by applying either the “significant nexus” test or by meeting the standard the plurality set forth in Rapanos.[14] These decisions identify two different views of the Court’s holding and illustrate that it will take further Supreme Court action to resolve the federal jurisdictional issues remaining after Rapanos. For further discussion of the federal Circuit’s application of Rapanos, see Federal Circuit Courts Split on Application of Supreme Court’s Rapanos Decision.

In a related decision, the Ninth Circuit Court of Appeals recently refused to extend the federal government’s jurisdiction under the Clean Water Act (“CWA”) to ponds adjacent to navigable waters. The decision in San Francisco Baykeeper v. Cargill Salt Division,[15] also interprets the Supreme Court’s ruling in Rapanos to extend only to wetlands, and not non-wetland waters, providing additional clarity to the reach of federal CWA jurisdiction over ponds, streams, and other waterbodies adjacent to protected waters. For more information on the Cargill decision, see Ninth Circuit Declines to Extend CWA Jurisdiction to “Adjacent Waters” Other Than Wetlands.

Opportunities for Clarification of Rapanos Supreme Court Review

Two recent Petitions for Supreme Court review provided the Court with opportunities to revisit the fractured Rapanos decision but the Court let stand controversial decisions from the Sixth and Ninth Circuits upholding federal jurisdiction over adjacent wetlands. In Baccarat Fremont Developers, LLC v. U.S. Army Corps of Engineers,[16] the Ninth Circuit ruled that the Corps could regulate “adjacent wetlands” regardless of whether such wetlands have a “significant hydrological or ecological connection” to navigable waters. In Morrison v. United States,[17] the Sixth Circuit ruled that the Corps could regulate wetlands in the vicinity of a canal that emptied into a navigable-in-fact River. In their Petitions for Certiorari, Baccarat and Morrison each argued for reconsideration of the appellate court’s decision in light of Rapanos.


In Baccarat, the denial of certiorari lets stand the Ninth Circuit’s ruling that the Corps has jurisdiction over wetlands “adjacent” to navigable waters, even if a significant hydrological connection between the two waterbodies does not exist. Baccarat began when a California developer challenged Corps jurisdiction over 7.66 acres of wetlands on a 30.98 acre site that it planned to develop.[18] The wetlands were located, at their closest point, approximately 65-70 feet from Alameda County flood control channels bordering the southern and western boundaries of the site. These channels were jurisdictional “waters of the United States” connected to San Francisco Bay, but were separated from the wetlands by man-made berms. Only one of the six delineated wetlands on the site received tidal flow through a culvert from a flood control channel. The five delineated wetlands which were not ecologically connected in this way were the subject of the litigation.

The developer argued that, after the U.S. Supreme Court’s ruling in Solid Waste Agency of North Cook County (“SWANCC”),[19] a “hydrological or ecological connection” between wetlands and the navigable waters is required to support CWA jurisdiction. That is, according to the developer, the Corps could not seek to protect the wetlands based on adjacency alone. The Ninth Circuit disagreed with Baccarat regarding the applicability of SWANCC to the Corps’ adjacency jurisdiction and ruled that a significant hydrological or ecological connection between a water of the United States and a particular adjacent wetland is not required for federal CWA jurisdiction. The Court went on to find that, although not required, a hydrological or ecological connection existed in that case. For further analysis of the Baccarat decision, see Ninth Circuit Affirms Permit Required for Development Adjacent to Wetlands.

In Baccarat’s petition for review,[20] filed on November 1, 2006, the developer argued that:

by finding the corps’ jurisdiction over ‘adjacent’ wetlands does not depend on the existence of a significant hydrological or ecological connection between the wetlands and the navigable waters subject to federal regulatory jurisdiction under the Clean Water Act, the Ninth Circuit decided an important question of federal law in a way that directly conflicts with the controlling rulings in Rapanos.

According to petitioner, the Corps lacks jurisdiction over its wetland under either the plurality or Justice Kennedy’s test, and therefore the Ninth Circuit decision “cannot not be reconciled” with the principles announced in Rapanos v. United States.[21] Baccarat also contended that the Court should remand for purposes of a redetermination of Corps jurisdiction over the Baccarat wetlands notwithstanding the Ninth Circuit’s “fall back position” that a “significant nexus” exists.

In response, the Corps countered that the Supreme Court should deny the petition for certiorari because high court review would not alter the outcome.[22] According to the federal respondents, the adjacent wetlands were subject to federal jurisdiction under Justice Kennedy’s Rapanos concurrence for two reasons. First, respondents argued that the wetlands in question were adjacent to traditional navigable waters and, thus, the Corps had jurisdiction based on “adjacency alone.”[23] Second, respondents argued that, even if the Court required a “significant nexus” between the wetlands and navigable waters, one existed in this case.[24] On February 20, 2007, the Supreme Court denied Baccarat’s petition for certiorari.


In Morrison, the Sixth Circuit decided that the federal government had CWA jurisdiction over wetlands on the landowner’s island property in the vicinity of a canal that emptied into the navigable St. Clair River. In that case, the Morrisons had attempted to repair a broken water supply line on their land on Harsens Island in Michigan. The United States sued the Morrisons, claiming that, in the process of repairing the malfunctioning water line, the landowners had violated Section 404 of the CWA by depositing dredge and fill material into jurisdictional wetlands without a permit. The Morrisons challenged the Corps’ assertion of CWA jurisdiction over their land.

The Sixth Circuit upheld the district court’s decision that the federal government had territorial jurisdiction over the Morrison’s property. After recounting the history of the land in question, the Court explained that the United States had territorial jurisdiction over the surveyed wetlands on the island as it had been a part of the state of Michigan since 1837. Further, and while the state of Michigan held title for unsurveyed wetlands on the island, “Michigan falls within the territorial jurisdiction of the United States for purposes of enforcing the CWA.”[25] Regardless of whether the wetlands in question were surveyed, or not, the Court found that all wetlands in question were “adjacent” to the St. Clair River, a navigable water of the United States. Without further explanation, the Court determined that “a significant nexus exists between the wetlands and the St. Clair River. Therefore, the United States has territorial jurisdiction over the Morrison’s property for purposes of enforcing the Clean Water Act.”[26] The Morrison’s petitioned for rehearing following the Supreme Court’s decision in Rapanos, arguing that the wetlands in question lacked the requisite nexus. That petition was denied.

In Morrison’s certiorari petition filed with the Supreme Court on November 22, 2006,[27] the landowner argued that the Sixth Circuit’s failure to discuss or cite Rapanos in denying the Morrisons’ petition for rehearing constituted “a gross dereliction and abdication of the duty of a court of appeals faithfully to apply the binding precedent of” the Court.[28] Accordingly, the Morrisons argued that certiorari was appropriate since: 1) the Supreme Court, in Rapanos, had rejected the Corps’ basis for jurisdiction over the Morrison’s property; and 2) the case was factually indistinguishable from Gerke Excavating Inc. v. United States.[29] Therefore, the Morrisons contended that, as in Gerke, the Supreme Court should grant the petition for certiorari, vacate the Sixth Circuit’s finding of Corps jurisdiction over the wetlands in question, and remand for further proceedings consistent with Rapanos. On March 5, 2007, the Supreme Court denied Morrison’s petition for certiorari.[30]


The Rapanos decision has created uncertainty about the scope of federal jurisdiction over “navigable waters,” including wetlands, intermittent and ephemeral streams, and other non-territorial water bodies. It is clear for now that, as Justice Stevens predicted, given the Supreme Court’s fractured decision in Rapanos many more courts will likely be called upon to decide cases involving interpretations of federal Clean Water Act jurisdiction. This uncertainty has left the Corps uncertain about how to proceed on permitting and enforcement. As a result, applicants for CWA permits may experience processing delays. Anyone anticipating work in or near these water-bodies should now, more than ever, carefully consider possible permit requirements at each level of government: federal, state, and local.

For more information about Marten Law Group’s water quality practice and the post-Rapanos regulatory environment, please contact Jeff Kray.

[1]Rapanos v. United States, 126 S.Ct. 2208(2006).

[2] 33 U.S.C §§ 1251 et seq.

[3] 126 S.Ct. at 2236.

[4] United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004).

[5] U.S. Army Corps of Engineers v. Carabell, 391 F.3d 704 (6th Cir. 2004).

[6] Id.

[7] 33 U.S.C. § 1311(a); 33 U.S.C. §§ 1362(6) and (12).

[8] 126 S.Ct. at 2225.

[9] Id.

[10] Id. at 2248-51.

[11] Id.

[12] Id. at 2265.

[13] United States v. Gerke, 464 F.3d 723 (7th Cir. 2006) and Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006).

[14] United States v. Johnson, 467 F.3d 56 (1st Cir. 2006).

[15] San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir. 2007).

[16] Baccarat Fremont Developers, LLC v. U.S. Army Corps of Engineers, 425 F.3d 1150 (9th Cir. 2005), cert. denied, 127 S.Ct. 1258 (2007).

[17] United States v. Morrison, 178 Fed.Appx. 481 (6th Cir. 2006)(unpublished), cert. denied, 127 S.Ct. 1485 (2007).

[18] Baccarat sought a permit to fill over two acres of these wetlands.

[19] 121 S.Ct. 675 (2001).

[20] Baccarat Fremont Developers v. U.S. Army Corps of Engineers, 2006 WL 3204956, Petition for Writ of Certiori (U.S. Nov. 1, 2006, No. 06-619) (subscription required). See also Baccarat Fremont Developers v. U.S. Army Corps of Engineers, 2007 WL 43600, Brief Amicus Curiae of Pacific Legal Foundation in Support of the Petitioner for Writ of Certiori (U.S. Jan. 3, 2007, No. 06-619)(subscription required).

[21] Id.

[22] Baccarat Fremont Developers v. U.S. Army Corps of Engineers, No. 06-619, opposition brief filed (U.S. Jan. 3, 2007)(subscription required).

[23] Id. at 15-16.

[24] Id. at 17. Respondents also alleged that vacatur was particularly unwarranted in this case since the court of appeals had already deferred ruling on Baccarat’s motion for rehearing pending the Supreme Court’s review of Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004), cert. granted, 126 S.Ct 415 (2005) and, thus, had already considered whether Rapanos affected the disposition of the case.

[25] 178 Fed.Appx. at 483.

[26] Id. at 483-484.

[27] Morrison v. United States, 2006 WL 3449025 (Nov. 22, 2006, Case No. 06-749), Petition for Writ of Certiorari (subscription required).

[28] Id. at 13.

[29] 126 S.Ct. 2964 (2006) (mem. opinion).

[30] 127 S.Ct. 1485 (2007).

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