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.
309/308 Enforcement Documents
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 Rapanos case.
The case before the court arose from a civil enforcement action initiated by the United States Environmental Protection Agency pursuant to the enforcement provisions under the Federal Water Pollution Control Act (also known as the Clean Water Act). Several years of disagreement as to the sites at issue resulted in the filing of a court action in the United States District Court for the Eastern District of Michigan against the owners of three land parcels near Midland, Michigan, including John Rapanos. The first parcel, known as the "Salzburg" site, consists of approximately 230 acres, which was found by the District Court based on expert testimony to contain 28 acres of wetlands. In considering this site, the District Court further found a surface water connection (via Hoppler Drain, located just north of the property, which carries water into the Hoppler Creek and thence into the Kawkawlin River) to tributaries of the Kawkawlin River which, in turn, flows into the Saginaw River and ultimately into Lake Huron. " Other sites owned by John Rapanos also found to contain wetlands were also at issue in the lower court proceedings, including the Hines Road site (275 acres with 64 acres of wetlands as determined by the District Court). The court found that the wetlands at the Hines site have a surface-water connection to the Rose Drain, which carries water into the Tittabawassee River, a navigable waterway. The final parcel, called the Pine River site, consists of some 200 acres, pictures of which the Community Rights Foundation has posted online. The District Court found that 49 acres were wetlands and that a surface water connection linked the wetlands to the nearby Pine River, which flows into Lake Huron. At all relevant times, John Rapanos owned the Salzburg site; a company he controlled owned the Hines Road site; and Rapanos' wife and a company she controlled (possibly in connection with another entity) owned the Pine River site. A terrific compilation of pictures and maps of the various areas as well as other relevant information is available at the Association of State Wetland Managers website.
Hoping to construct a shopping center, Mr. Rapanos et al asked the Michigan Department of Natural Resources to inspect the Salzburg site in December of 1988. A state official informed Rapanos that while the site likely included regulated wetlands, Rapanos could proceed with the project if the wetlands were delineated (that is, identified and preserved) or if a permit were obtained. Rapanos then hired a wetlands consultant to survey the property, who informed Rapanos that the site included between 48 and 58 acres of wetlands. "Rapanos allegedly threatened to 'destroy' the consultant unless he eradicated all traces of his report", Rapanos, 2006 U.S. LEXIS 4887, slip op. at 6 (Kennedy, concurring), and ordered $350,000-worth of earthmoving and landclearing work that filled in 22 of the 64 wetlands acres on the Salzburg site, without a permit and in contravention of cease-and-desist orders from state officials and the EPA. At the Hines Road and Pine River sites, construction work, likewise conducted in violation of state and federal compliance orders, altered an additional 17 and 15 wetlands acres, respectively. Id.
In light of these actions, both federal criminal and civil charges were filed against Rapanos (see timeline of disposition of the various charges). After a 13-day bench trial, the District Court found on the merits that jurisdictional waters existed on Rapanos property and ruled in the Government's favor. The United States Court of Appeals for the Sixth Circuit affirmed. 376 F.3d 629, 634 (2004).
Mr. Rapanos sought certiorari and review of the Sixth Circuit opinion (that dealt with the civil charges) by the United States Supreme Court, which was granted on 11 Oct. 2005, but consolidated with another case, Carabell v. United States Army Corps of Engineers, 257 F. Supp. 2nd 917 (2003). The questions presented in Rapanos v. United States, No. 04-1034, were "1. Does the Clean Water Act prohibition on unpermitted discharges to 'navigable waters' extend to nonnavigable wetlands that do not even abut a navigable water?; 2. Does extension of Clean Water Act jurisdiction to every intrastate wetland with any sort of hydrological connection to navigable waters, no matter how tenuous or remote the connection, exceed Congress' constitutional power to regulate commerce among the 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.
Time Line for United States v. Rapanos Criminal Case
Aug. 03, 1995: District Court rules against Rapanos for violated section 404 of the CWA, at the end of trial, the District Court grants a retrial because of a potential mistrial. The Government appealed the decision to rehear the case. 895 F. Supp. 165.
Aug. 04, 1997: The Sixth Circuit reverses the District Court's decision to rehear the case and denies a retrial. Rapanos appeals to the US Supreme Court. 115 F. 3d 367.
Oct. 14, 1997: The US Supreme Court denies Certiorari, and remands to the Sixth Circuit. Rapanos then appeals the original ruling against him.
Dec. 15, 2000: The Sixth Circuit upholds the District Court's ruling against Rapanos. Rapanos appeals to the US Supreme Court. 235 F.3d 256.
June 18, 2001: The US Supreme Court grants certiorari, and vacates the judgment against Rapanos. The case is remanded to the Sixth Circuit on appeal for consideration in light of SWANCC. 121 S. Ct. 2518.
July 13, 2001: The Sixth Circuit remands the case on appeal to the District Court for consideration in light of SWANCC. 16 Fed. Appx. 345.
Feb. 21, 2002: The District Court rules in favor of Rapanos, saying the CWA lacked jurisdiction. The government appeals. 190 F. Supp. 2d.
Aug. 05, 2003: The Sixth Circuit reverses the decision of the District Court. Rapanos files for certiorari. 339 F. 3d 447.
Apr. 05, 2004: The US Supreme Court denies certiorari. Rapanos files for a rehearing.
May 24, 2004: The US Supreme Court denies a rehearing.
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