U.S. Supreme Court to Hear Key Wetland, Regulated Discharge Cases

January 16, 2006
by JONATHAN RINDE

The U.S. Supreme Court in late February heard two cases involving Clean Water Act ("CWA") jurisdictional limits as to dredging or filling activity under the Section 404 permitting program. In Rapanos v. United States, the issue is whether wetlands whose only hydrologic connection to navigable waters is a drainage ditch remain within the Section 404 permitting jurisdiction of the U.S. Army Corps of Engineers ("Corps"). The Rapanoses allegedly filled 54 acres of such wetlands on their property in Michigan. In 2000, the Eastern District of Michigan found that the wetlands were regulated under the CWA, which the Sixth Circuit affirmed.

The petitioners planned to turn their Michigan property, of which approximately 15 acres are forested wetlands, into a condominium complex. A drainage ditch on a parcel of land adjacent to the forested wetlands intersects a drain that empties eventually into a navigable water. Both the district court and the Sixth Circuit found that because the forested wetlands were separated from a tributary of waters of the United States only by a manmade berm, they were considered "adjacent" wetlands subject to the Corps' regulation.

In a third case heard on the same day, S.D. Warren Co. v. Maine Board of Environmental Protection, the Court was asked to rule on whether water flow through a hydroelectric dam constitutes a discharge requiring a Section 401 Water Quality Certificate from the state. The Court's decision in this case will help determine what constitutes a regulated "discharge" under the CWA.