United States of America
Wetlands, Permits, Standing, Civil, Jurisdiction
One of the principal provisions in the Clean Water Act (CWA) is 33 U. S. C. §1311(a), which provided that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” was defined broadly to include “any addition of any pollutant to navigable waters from any point source,” §1362(12). The CWA defined “navigable waters” as “the waters of the United States, including the territorial seas.” §1362(7). The Army Corps of Engineers, which issued permits for the discharge of dredged or fill material into navigable waters, interpreted “the waters of the United States” expansively and included, in addition to traditional interstate navigable waters, also other defined waters, “tributaries” of such waters, and wetlands “adjacent” to such waters and tributaries. “Adjacent” wetlands included those “bordering, contiguous to, or neighboring” waters of the United States even when they were “separated from such waters … by man-made dikes … and the like.” The cases in this connection related to four Michigan wetlands lying near ditches or man-made drains that eventually emptied into traditional navigable waters. The United States brought civil enforcement proceedings against the Rapanos petitioners, who had backfilled three of the areas without a permit. The Carabell petitioners were denied a permit to deposit fill in a wetland that was separated from a drainage ditch by an impermeable berm. The Supreme Court was of the view that the phrase “the waters of the United States” included only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that were ordinarily described as “streams,” “oceans, rivers, and lakes,” and did not include channels through which water flew intermittently, or channels that periodically provided drainage for rainfall. The Corps’ expansive interpretation of that phrase was not “based on a permissible construction of the statute.” The Act’s use of the traditional phrase “navigable waters” confirmed that the CWA conferred jurisdiction only over relatively permanent bodies of water. Traditionally, such “waters” included only discrete bodies of water, and the term still carried some of its original substance. A wetland could not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection. Only those wetlands with a continuous surface connection to bodies that were “waters of the United States” in their own right, so that there was no clear demarcation between the two, were “adjacent” to such waters and covered by the Act. The Court held that the Sixth Circuit Court had applied an incorrect standard to determine whether the wetlands at issue were covered “waters”. Thus, the cases were remanded for further proceedings.