Effects of Rapanos Decision

Michigan developer John Rapanos planned to construct housing complexes on wetlands. The Army Corps of Engineers, however, declared jurisdiction over the wetlands under the Clean Water Act because ground water on Rapanos' property connected the wetlands to “navigable waters.” Two years after the 4-1-4 split decision in favor of Rapanos a settlement has been reached. The federal government filled a separate suit claiming different jurisdiction over the wetlands and Rapanos conceded and agreed to pay $150,000 in civil fines and $750,000 more to mitigate the 54 acres of wetlands that were filled without a permit. The decision applies to both the § 402 NPDES permit program of the CWA and the § 404 dredge and fill permit program because both sections utilize the same definition of “navigable waters.”

The Rapanos case characterizes opposition between environmental protection and private property rights but with two different jurisdictional tests. The court plainly rejected the government’s claim of authority over virtually all waters and land in the Nation. This is a significant victory for landowners because of the prevalence of water bodies on private lands. Rapanos greatly alters the scope of federal authority under CWA. The decision in favor of limiting federal government regulation on private property has left us with a problem. Who will protect our nation’s wetlands? Wetlands not only provide an obvious source of usable water and habitats for wildlife, but store floodwater to reduce the effects of floods, control erosion, and filter pollutants from surface and ground water. For instance, if more coastal wetlands surrounding Louisiana had been preserved, the devastating impact of Hurricane Katrina would have been lessened. Rapanos also limits cross-boundary issues between states. The CWA is primarily enforced by the states but now in the case of wetlands, the federal government has little to no jurisdiction. It is up to the states to adopt policies to narrow the two broad and dissimilar tests issued by the court.

Two years later, the lower courts have interpreted the decision inconsistently. Over a 17-month period more than 500 enforcement cases were lost in court, not pursued, or lowered in priority due to the confusion of the tests. This has had a significant impact on both federal and state enforcement. Recently the Department of Justice (DOJ) petitioned the Supreme Court for clarification but the request was denied. Conservation groups are hoping that the Obama administration and Congress will deliver new guidance to resolve the confusion provoked by Rapanos.