By Howard Bleichfeld, Sam Collinson, and Christopher S. Mills

On Tuesday, February 21st, the United States Supreme Court is scheduled to hear oral argument on two cases concerning the scope of federal jurisdiction under the federal Clean Water Act (CWA). The two cases, Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004), cert. granted (U.S. Oct 11, 2005) (No. 04-1034) and Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004), cert. granted (U.S. Oct 11, 2005) (No. 04-1384), which have been consolidated for review by the Supreme Court, involve landowners who filled wetlands distant from “traditional” navigable waters. By “traditional” navigable waters we mean those waters that comprise the “highways of commerce,” and have been regulated for over 100 years by the US Army Corps of Engineers (Corps). They are defined in Corps regulations as “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently used, or have been in the past, or may be susceptible for use to transport interstate or foreign commerce.” 33 C.F.R. § 329.4 (2005). In reviewing the decisions of the US Court of Appeals for the 6th Circuit in the Rapanos and Carabell cases, the Supreme Court may clarify the boundaries of federal CWA jurisdiction which have remained unclear since the Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”—531 U.S. 159 (2001)).

The limits of federal jurisdiction are important to developers, irrigation districts, state and local governments, utilities and any other entity seeking to plan and build a project affecting wetlands. The wetlands permitting process under section 404 of the CWA is time consuming, expensive, and controversial. Once jurisdiction under the program is claimed, it is all too easy for the sponsor of a project to lose control over its timing and design. Moreover, application for a CWA section 404 permit often triggers extensive consultation with the US Fish and Wildlife Service under section 7 of the federal Endangered Species Act. In addition, because the Court’s decision will apply to the entire CWA, the jurisdiction of other programs also could be affected, including the National Pollutant Discharge Elimination System (NPDES) Program under CWA section 402, and the Oil Pollution Act.

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