A Good Quarrel: America's Top Legal Reporters Share Stories from Inside the Supreme Court

Rapanos v. United States: Wading into the Wetlands

Rapanos v. United States Wading into the Wetlands argued february 21, 2006 david g. savage John Rapanos sought to ‹ll in three wetland areas on his property to build a shopping center. Rapanos ignored warnings from the Michigan Department of Environmental Quality that the area was protected wetlands under the Clean Water Act (CWA). The CWA allows the government to regulate the discharge of any pollutant (including dirt or sand) into “navigable waters,” which the act de‹nes as “the waters of the United States.” Under regulations issued by the Army Corps of Engineers , wetlands are covered by the CWA as long as they are adjacent to traditionally navigable waters or tributaries of such waters. After Rapanos also ignored cease-and-desist orders from the U.S. Environmental Protection Agency, the government brought a civil suit against him. Rapanos argued before the district court that the CWA gives the government jurisdiction to regulate only traditionally navigable waters. The district court rejected Rapanos’s argument and upheld the corps’s regulations including the wetlands as “waters of the United States.” The Sixth Circuit Court of Appeals af‹rmed.| 125 To listen to passages from oral arguments indicated with , visit www.goodquarrel.com. ;)) “you win some. You lose some,” said former vice president Al Gore at the 2004 Democratic National Convention. “Then there’s that little-known third category.” Lawyers who practice regularly before the Supreme Court are familiar with that category. They win some and lose some, but in a surprising number of cases, it is not entirely clear who won and who lost. Often, both sides claim victory because, they say, the Court’s decision— or the wording of its opinion—gave them what they wanted. Of course, the lawyers don’t decide the cases or determine how they are decided. In the end, the justices—perhaps as few as ‹ve of them— decide a case based on their view of the law at issue, not on how the case was presented to them. But the lawyers have a chance to persuade the justices to adopt a particular rule of law. That in turn requires the lawyers to think through and to explain how this rule will work in practice . At their best—and in the closest cases—effective lawyers can tip the balance by reassuring a wavering justice (or several) that there is a right answer to the legal question before them. Federal Power and Water Rights The ‹rst and oldest question in American constitutional law concerns the reach of the federal government’s power. In 1787, the drafters of the Constitution sought to give the newly reformed national government certain but not all powers. Their opponents—the Antifederalists—were not reassured. They feared that the national government would claim ever more power and threaten the liberty of its citizens. The Supreme Court got under way a few years later and has spent much of its time since then trying to answer versions of the same question: What is the limit on federal power? If there is indeed a limit, John Rapanos certainly thought he and Michigan farm ‹elds lay well beyond it. He owned 230 acres near Midland , about twenty miles from Lake Huron. Several acres were marshy and low-lying. When it rained, water ›owed from there to a drainage ditch and then to Hoppler Creek, which in turn ›owed into the Kawkawlin River, which emptied into Lake Huron.| a good quarrel 126 In 1988, Rapanos said that he planned to clear the land so it could be developed for a shopping center. He had similar plans for two other nearby parcels of land. However, state and federal regulators warned him that there were wetlands on his land and that he could not proceed without obtaining a permit. The Clean Water Act of 1972 made it illegal to put “any pollutant” into the “waters of the United States” without a permit. The act de‹ned pollutant to include not just sewage and toxins but also dredged or ‹ll material such as rock, sand, or dirt. And it de‹ned waters of the United States as “navigable waters.” No one would claim that the marshy spots on this farmer’s ‹eld were “navigable.” But water ›ows downhill, and since the 1970s, the Environmental Protection Agency and the U.S. Army Corps of Engineers has insisted that wetlands were part of the “waters of the United States...