Rapanos v. United States: Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles

• Date: 01 December 2010
• Author: Lawrence R. Liebesman, Rafe Petersen, and Michael Galano

40 ELR 11242 ENVIRONMENTAL LAW REPORTER 12-2010

Rapanos v. United

States: Searching

for a Signif‌icant

Nexus Using

Proximate

Causation and

Foreseeability

Principles

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., oce. e authors

would like to thank Steve Kelton, formerly of Holland & Knight,

who contributed signicantly in the preparation of this Article.

Editors’ Summary

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 “signicant 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 eect 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; specically, 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 dicult to determine where the ‘water’ ends and the

‘wetland’ begins.”5 In forming his opinion, Justice Scalia

1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

2. Carabell v. U.S. Army Corps of Eng’rs, Rapanos v. United States, 126 S. Ct.

2208, 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).

4. 33 U.S.C. §1344.

5. Rapanos, 126 S. Ct. at 2227.

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