United States Supreme Court Granted Certiorari to Review Three Wetlands Cases Involving the Scope of Federal Jurisdiction Under the Clean Water Act

Beveridge & Diamond, P.C. Client Alert, October 11, 2005

On October 11, 2005, the United States Supreme Court granted certiorari to hear three cases involving the scope of federal jurisdiction under the Clean Water Act. Two of the cases the Court agreed to hear – Rapanos v. United States (No. 04-1034) and Carabell v. U. S. Army Corps of Engineers (No. 04-1384) – involve similar issues concerning federal jurisdiction over hydrologically isolated wetlands, and thus will be consolidated for review. The third case, S.D. Warren v. Maine Board of Environmental Protection (No. 04-1527), will address the federal government’s authority to regulate the flow of water through dams and pumps that separate distinct bodies of water. Collectively, these cases offer the potential to settle longstanding disputes over the permitting authority of the U.S. Army Corps of Engineers and the regulation of isolated wetland features under Congress’ Commerce Clause power.

The Supreme Court’s decision to take on the issues presented in these three cases comes just four years after its opinion in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, a case in which a 5-4 vote of the Justices struck down the Army Corps’ migratory bird rule for lacking a substantial nexus to the “navigable waters” governed by the Clean Water Act. Since that decision, the Court has not substantively addressed the federal government’s jurisdiction under the statute, but several Circuit Courts of Appeal have issued opinions giving their take on the extent of the Corps’ jurisdiction. While most decisions have upheld a generally expansive view of the government’s authority to regulate “waters of the United States” under the Act, these cases will be the first test of the Roberts Court applying federalism and statutory construction issues to environmental regulation. Arguments will be held early next year, and decisions are expected by July 2006.

For more information please contact Fred Wagner at fwagner@bdlaw.com or Parker Moore at pmoore@bdlaw.com.