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New Supreme Court Ruling Limits Clean Water Act

In a decision Monday, the U.S. Supreme Court limited the regulatory reach of the Clean Water Act. The justices, voting 5-4, narrowed the definition of waters under the Clean Water Act to include "only relatively standing or continuously flowing bodies of waters" and stated that Clean Water Act jurisdiction did not include channels through which waters flow intermittently or ephemerally or channels which periodically provide drainage for rainfall.  

The U.S. Supreme Court agreed with the owners of four Michigan wetlands that the United States Army Corps of Engineers exceeded its authority in attempting to prevent the development of their properties and ruled that the scope of federal power under the Clean Water Act should be limited, especially in relation to wetlands. The decision involved two cases, Carabell v. United States Army Corps of Engineers and Rapanos v. United States. 

In the case, the Carabells sought to develop a 20-acre parcel of land in Chesterfield Township, which included 15 acres of forested wetland. Although a Michigan state agency approved the development, the Army Corps contended that the federal Clean Water Act prohibited development, even though the wetlands had no physical connection to any other body of water. The Carabells argued that the federal government could not have any authority unless, at the very least, such a connection was present. 

The decision, written by Justice Antonin Scalia, further limited the scope of the Clean Water Act to wetlands that are both adjacent to waters with a relatively permanent flow and possess a "continuous surface connections that creates a boundary-drawing problem, making it difficult to determine where the "water" ends and the "wetland begins". 

The five justices who agreed with the Carabells, ruled that a wetland could only fall under federal regulation if it was connected to a navigable river or stream by a significant, regular flow of water. Justice Anthony Kennedy differed with the four other justices in the majority about precisely how to evaluate when the necessary connection is present, but all of the justices agreed that the federal government lacks the power to regulate every body of water and wetland in the United States and that the role of state and local governments in such regulation should be expanded. "This is a victory," says Timothy Stoepker of Dickinson Wright who argued the Carabells' case. "Our job now is to help the district court define what is a navigable waterway."  

The Court's majority agreed that the Army Corps had given an overly broad reading to the Clean Water Act's term "waters of the United States." As Justice Scalia wrote, "in applying the definition to 'ephemeral streams,' 'wet meadows,' storm sewers and culverts, ... man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term 'waters of the United States' beyond parody." The question remaining after the decision is how far the definition may be allowed to stretch, and, as Chief Justice Roberts noted in his concurring opinion, the definition will have to be worked out as "lower courts and regulated entities ... feel their way on a case-by-case basis."

A statement from American Farm Bureau Federation President Bob Stallman says the ruling appears to favor landowners. "This ruling supports our position as expressed in our friend-of-the-court brief that fields and pastures that have been used by farmers and ranchers for many years should not be regulated the same as rivers and streams," he says. 

Stallman adds that Farm Bureau will analyze the court's opinion over the next few days. "We believe it grants the federal government authority to regulate water and wetlands while allowing farmers to continue as the primary caretakers of their land.

"The Clean Water Act is one of several strong laws already in place that protects our water and environment by regulating farmers and others. Farmers and ranchers have a good track record of taking care of the land and undertaking conservation efforts, including wetlands preservation and restoration. They have a deep interest in caring for the land, because they need the land as their partner," Stallman says.