40 ELR 11242 ENVIRONMENTAL LAW REPORTER 12-2010
Rapanos v. United
for a Significant
by Lawrence R. Liebesman, Rafe
Petersen, and Michael Galano
Lawrence R. Liebesman and Rafe Petersen are partners, and
Michael Galano is an associate in the Environmental Practice of
Holland & Knight LLP’s Washington, D.C., oce. e authors
would like to thank Steve Kelton, formerly of Holland & Knight,
who contributed signicantly in the preparation of this Article.
e U.S. Supreme Court issued its decision in R apanos
v. United States more than four years ago. Because no
single opinion garnered a majority of the Justices’ votes, the
controlling test for wetlands jurisdiction remains unclear.
Anthony M. Kennedy’s concurring opinion seems to have
gained acceptance by most circuit courts, the agencies and
and guidance documents, this Article concludes that, absent
congressional action clarifying CWA jurisdiction, applying
the principles of proximate causation and foreseeability to
what areas can and cannot be deemed jurisdictional.
It has been more than four yea rs since the U.S. Supreme
Court issued its latest interpretation of the limits of
the Clean Water Act (CWA).1 e consolidated cases
of Carabell v. U.S. Army Corps of Engineers and R apanos v.
United States2 (hereinafter Rapanos) have been justly criti-
cized for their less-than-clear opinion.3 When the opinion
was issued, it was hoped that some level of clarity would arise
from the “signicant nexus” test set forth in Justice Anthony
M. Kennedy’s concurring opinion. To date, however, the
U.S. Army Corps of Engineers (the Corps), the U.S. Envi-
ronmental Protection Agency (EPA), and the courts have
struggled with nding meaning in this test.
is Article take s a hard look at the origins of the signi-
cant nexus test, relevant ca se law, and the guidance docu-
ments issued by the Corps and EPA, and suggests principles
to give Justice Kennedy’s words eect in a manner that is
consistent with the underlying limits of the CWA. e
Article concludes that for this test to have meaning, the tra-
ditional time-tested principles of proximate causation and
foreseeability should be applied in helping to delineate the
limits of CWA jurisdiction.
I. Rapanos Recap
ough the details of Rapanos have been widely reported, it
is still worthwhile to give a quick recap of the case—and why
Justice Kennedy’s opinion has become the center of the dis-
cussion over jurisdiction. Rapanos examined the geographi-
cal reach of federal jurisdiction; specically, whether three
wetlands linked by a hydrological connection to “navigable
waters” more than 20 miles away (in Rapanos’ case) and a
wetland separated by a berm from a drainage ditch that
eventually drains into a navigable water (in Carabell ’s case)
were subject to §404 of the CWA.4 e outcome was scat-
tered; ve separate opinions indicated a highly divided court.
Justice Antonin Scalia (joined by Justice Clarence
omas, Chief Justice John G. Roberts, and Justice Samuel
A. Alito Jr.) argued for a plain language interpretation of the
Act. e plurality held t hat the CWA applies only if “the
adjacent channel contains a ‘wate[r] of the United States,’
(i.e., a relatively permanent body of water connected to tra-
ditional interstate navigable waters),” and “that the wetland
has a continuous surface connection with that water, mak-
ing it dicult to determine where the ‘water’ ends and the
‘wetland’ begins.”5 In forming his opinion, Justice Scalia
Carabell v. U.S. Army Corps of Eng’rs, Rapanos v. United States, 126 S. Ct.
, 36 ELR 20116 (2006).
3. See, e.g., James Murphy, Rapanos v. United States: Wading rough Murky Wa-
ters, 28 N’ W N. 1 (Sept.-Oct. 2006) (Supreme Court did
not provide clarity as to scope of jurisdiction over waters of the United States).
5. Rapanos, 126 S. Ct. at 2227.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.