US Supreme Court Rapanos and Carabell Wetlands Cases
This website has been created for academic purposes by Professor Kim Diana Connolly, to be used by her students and others interested in studying the United States Supreme Court Rapanos and Carabell wetlands cases. Professor Connolly appreciates the assistance provided by the Detroit District of the U.S. Army Corps of Engineers, University of South Carolina School of Law Webmaster Tobias Brasier and USC School of Law research assistant John Lipscomb. For academic questions related to the cases below or regulation of wetland generally, please feel free to contact Professor Connolly.
Below is a textual description with hot links to relevant documents. Please note: some of the following are very large PDFs, so expect long download times.
The United States Supreme Court took up an important case with respect to wetlands and other waters of the United States when it agreed to hear the Carabell case. June Carabell, Keith Carabell, Harvey Gordenker, and Frances Gordenker (collectively, "Carabells") own the property at issue in this controversy, which is 19.61 acres of property in Chesterfield Township, Macomb County, Michigan. In prehistoric times, the property had been submerged under Lake St. Clair, and as the lake receded over time, some areas remained covered by wetlands. The Carabell property is currently located approximately one mile northwest of Lake St. Clair and contains 15.96 acres of wooded wetlands, one of the last remaining large forested wetland parcels in Macomb County.
The controversy began when the Carabells decided to plan for construction of a large multi-family condominium development on the property. As described by the Sixth Circuit:
The property is shaped like an inverted right triangle, the hypotenuse of which runs from the southwestern corner of the parcel at a 45 degree angle to the northeast corner. Following the hypotenuse and separating the Carabells' property from the adjacent property is an unnamed ditch. When the ditch was excavated, the spoils were cast to either side of the ditch, creating upland berms approximately four feet wide along the banks of the ditch. The berm edging the Carabells' property serves to block immediate drainage of surface water out of the parcel into the ditch. Wooded conditions exist up to the upland rim of the ditch. At the northeastern corner of the property, the ditch connects to the Sutherland-Oemig Drain, which empties into the Auvase Creek, which empties into Lake St. Clair, which is part of the Great Lakes drainage system. Although the record does not establish the direction of water flow in the ditch, the ditch empties either into the Sutherland-Oemig Drain at the northeastern corner of the property, or into ditches at the southwestern corner of the property that--like the Sutherland-Oemig Drain--outlet into Auvase Creek and eventually into Lake St. Clair.
Following a series of interactions with state and federal authorities, the Carabells submitted an application to the Detroit District of the United States Army Corps of Engineers ("Corps"). The Corps made a series of site visits to the property, then issued a Statement of Findings (SOF). The SOF that determined the operation and use of the proposed activity would have major, long term, negative impacts on water quality, on terrestrial wildlife, on the wetlands, on conservation, and on the overall ecology of the area. This SOF was based on an Environmental Assessment (pages 1-8, pages 9-16, pages 17-27) pursuant to the National Environmental Policy Act (NEPA). By letter dated October 5, 2000, the Corps notified the Carabells that their application for a permit had been denied. In its letter, the Corps stated:
Your parcel is primarily a forested wetland that provides valuable seasonal habitat for aquatic organisms and year round habitat for terrestrial organisms. Additionally, the site provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair. The minimization of impacts to these wetlands is important for conservation and the overall ecology of the region. Because the project development area is a forested wetland, the proposed project would destroy the resources in such a manner that they would not soon recover from impacts of the discharges. The extent of impacts in the project area when considered both individually and cumulatively would be unacceptable and contrary to the public interest.
The Carabells appealed this Corps' decision pursuant to the agency administrative appeals process. A decision on that appeal was issued on 5 March 2001 that determined the appeal had no merit, finding that the onsite wetland was properly regulated because it was adjacent to a tributary system of Lake St. Clair. The Carabells then filed suit in United States District Court.
In the decision issued by the United States District Court for the Eastern District of Michigan, Southern Division, Carabell v. United States Army Corps of Engineers, 257 F. Supp. 2nd 917 (2003), United States Magistrate Judge Wallace Capel Jr. held that the wetlands in question had a "significant nexus" to waters of the United States (based on United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)) because the property was found to be adjacent to neighboring tributaries of navigable waters, which gives the Corps jurisdiction over the property under 33 C.F.R. § 328.3. The Court refused to apply the Plaintiffs' suggested scope of the Clean Water Act (that there must be a tangible connection to the navigable waters of the United States) from the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Corps of Engineers 531 U.S. 159 (2001). The Court dismissed the remaining arguments as the Plaintiffs did not meet the burden of proof required to overturn the Corps decision and found in favor of the Corps. The Carabells then appealed the decision to the United States Court of Appeals for the Sixth Circuit.
The United States Court of Appeals for the Sixth Circuit issued its decision in the case on 27 December 2004. Carabell v. Corps, 391 F. 3d. 704 (6th Cir. 2004). In its decision, the Sixth Circuit held that
[c]onsistent with both Rapanos cases, the district court in this case determined that there is a "significant nexus" between the wetlands on the Carabells' property and the adjacent nonnavigable ditch abutting their property, a ditch that flows one way or another into other tributaries of navigable waters of the United States. We find no error in the district court's decision. ... The Carabells contend that, even if CWA jurisdiction exists over their property, the district court nonetheless erred by failing to overrule the Corps' decision on the merits of their permit application. Based on its review of the relevant regulations and the Corps' evaluation of the Carabells' permit application, the district court concluded that the Corps provided a rational basis for its decision. Because we agree that the Corps' decision was neither arbitrary nor capricious, we find no basis for disturbing the district court's determination.
The Carabells sought certiorari and review of the Sixth Circuit opinion by the United States Supreme Court, which was granted on 11 Oct. 2005, consolidated with another case, United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004). The questions presented in Carabell v. United States Army Corps of Engineers, No. 04-1384, are "1. Does the Clean Water Act extend to wetlands that are hydrologically isolated from any of the 'waters of the United States?' and 2. Do the limits on Congress' authority to regulate interstate commerce preclude an interpretation of the Clean Water Act that would extend federal authority to wetlands that are hydrologically isolated from any of the 'waters of the United States?'"
The crowded United States Supreme Court docket in the Carabell case demonstrates the high level of interest from varied stakeholders in the wetlands arena. Copies of briefs (by both parties and amici) are available for no charge through the Endangered Species and Wetlands Report website. A good summary of the issues presented by this and its companion case was prepared by the Congressional Research Service and made available through the National Council for Science and the Environment.
The U.S. Supreme Court heard oral arguments in the combined cases on 21 February 2006, and the oral argument transcript demonstrates the interest that most justices took in the case. The U.S. Supreme Court decision is expected in June.
The Supreme Court issued its decision on 19 June 2006, remanding the decision to the lower courts for further consideration. In a plurality opinion written by Justice Scalia and joined only by Chief Justice Roberts and Justices Alito and Thomas, the Clean Water Act's protection of "waters of the United States" would have been limited to those bodies of water that are "permanent, standing or continously flowing." However, the fifth vote for remand provided by Justice Anthony M. Kennedy was far less broad in its interpretation, and states that the plurality opinion is "inconsistent with the Act's text, structure and purpose." Justice Kennedy calls for a "significant nexus" test to be developed by the regulating agencies, while in the meantime asking for "case-by-case" review by the Corps when it "seeks to regulate wetlands based on adjacency to nonnavigable tributaries." A dissent issued by Justice Stevens and joined by Justices Souter, Ginsburg and Breyer would have upheld the lower courts' decisions. A separate opinion by Chief Justice Roberts confirms that "[l]ower courts and regulated entities will now have to feel their way on a case-by-case basis."
A lively discussion of the decision can be found on the SCOTUS blog, hosted by the law firm of Akin Gump et al, including a commentary by Professor Connolly. Initial press coverage of the decision reflects the uncertainty this decision creates for Clean Water Act Section 404 permitting.
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