Supreme Court Grants Certiorari in 3 Clean Water Act Cases
Will the Court Clear Up the Muddied Waters?

 On October 11, 2005, the U.S. Supreme Court granted certiorari in 3 Clean Water Act cases.  In the first two, Rapanos v. United States (No. 04-1034) and Carabell v. U.S. Army Corps of Engr's (04-1384) the Court consolidated them for decision on the merits. 

Rapanos concerns wetlands on the site of a commercial construction project, and Carabell concerns wetlands on the site of a multi-family residential project.  The issue in both of these cases involves whether, and under what circumstances, a non-navigable feature can be considered a statutory "navigable water" for purposes of jurisdiction under the federal Clean Water Act.  In particular, the cases will address whether a drainage ditch, miles away from the closest truly navigable water, can nonetheless be subject to federal permitting requirements. 

The crux of the Rapanos and Carabell cases is the definition of "navigable waters of the United States" as this phrase appears in the Clean Water Act. Inconsistent enforcement by local governments points to an overly broad interpretation of what constitutes a wetland, to the point that private landowners must even obtain a federal permit for actions that affect a drainage ditch that the owners may create on their own land.

In the third case, S.D. Warren Co. v. Maine Bd. of Environmental Protection (No. 04-1527), the issue involves the Clean Water Act's definition of "discharge," which requires that pollutants be added to navigable waters before federal permitting requirements are triggered.  S.D. Warren concerns whether water that is released through a dam constitutes a “discharge” to the downstream portion of the waterbody.  While the suit does not arise in the land development context, the Court’s interpretation of the term “discharge” will likely affect the issue in the Tulloch case, pending before the D.C. Circuit Court of Appeals.  NAHB filed an amicus brief at the merits stage explaining that mere soil disturbance within the same wetland does not trigger CWA permitting requirements.  If the Court rules in our favor, we will hopefully get a ruling that ditching, landclearing and other construction activities that simply move soils around in the very same wetland, or remove vegetation, do not require CWA permits.

The three cases, known collectively as Rapanos, Carabell and S.D. Warren, represent a myriad of wetlands issues that could receive crucial clarification from the Court and improve predictability in the regulatory process.  

The Court will hear oral argument in all three cases on Tuesday, February 21, 2006. [ return to top ]