The Wetlands Coverage of the Clean Water Act Is Revisited by the Supreme Court: Rapanos v. United States Page: 4 of 22
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The Wetlands Coverage of the Clean Water
Act Is Revisited by the Supreme Court:
Rapanos v. United States
On June 19, 2006, the Supreme Court decided Rapanos v. United States.1 The
decision addressed the asserted jurisdiction of the U.S. Army Corps of Engineers and
the Environmental Protection Agency (EPA) over wetlands adjacent to "waters of the
United States," the problematic phrase used by the Clean Water Act (CWA)2 to
define the geographic scope of the act's wetlands permitting program.
Actually, two separate decisions, consolidated for purposes of argument and
decision, were before the Court. Both were from the Sixth Circuit, and both involved
Michigan wetlands. In Rapanos v. United States,3 the issue was whether the CWA's
wetlands permitting program applies to wetlands that are only distantly connected to
traditional navigable waters - or at a minimum, do not abut them. In Carabell v.
U.S. Army Corps of Engineers,4 the issue was whether that same program reaches
wetlands that are not hydrologically connected to any traditional navigable water.
Both cases also raised a constitutional question: if the disputed CWA coverage exists,
did Congress exceed its authority under the Commerce Clause of the Constitution?
In taking these separate cases, the Court was revisiting a CWA conundrum with
which it and many other courts had wrestled for three decades: which wetlands are
to be regulated under the CWA and which fall solely within the jurisdiction of the
states in which they are located.
Wetlands, with a variety of physical characteristics, are found throughout the
country. They are known in different regions as swamps, marshes, fens, potholes,
playa lakes, or bogs. Although these places can differ greatly, they all have
distinctive vegetative assemblages because of the wetness of the soil. Some wetland
areas may be continuously inundated by water, while other areas may not be flooded
at all. In coastal areas, flooding may occur on a daily basis as tides rise and fall.
1 547 U.S. 715 (2006).
2 33 U.S.C. 1251-1387.
3 United States v. Rapanos, 376 F.3d 629 (6'' Cir. 2004).
4 Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6'' Cir. 2004).
s The Commerce Clause, U.S. Const. art. I, 8, cl. 3, gives the Congress authority "To
regulate Commerce ... among the several States ...."
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Meltz, Robert & Copeland, Claudia. The Wetlands Coverage of the Clean Water Act Is Revisited by the Supreme Court: Rapanos v. United States, report, April 22, 2008; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc847676/m1/4/?q=%22environmental%20protection%22: accessed February 23, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.