The Wetlands Coverage of the Clean Water Act is Revisited by the Supreme Court: Rapanos and Carabell

Twice in the past, the Supreme Court has grappled with issues as to the geographic scope of the wetlands permitting program in the federal Clean Water Act (CWA). On October 11, 2005, the Supreme Court agreed to hear two more cases (consolidated by the Court) addressing such questions — both from the SixthCircuit. In Rapanos v. United States, the issue is whether the permitting program applies to wetlands that are only distantly connected to traditional navigable waters — i.e., or at least do not actually abut them. In Carabell v. U.S. Army Corps of Engineers, the issue is whether the program reaches wetlands that are not hydrologically connected to any “water of the United States,” the CWA term that defines the act’s geographic reach. Both cases also raise a constitutional question: assuming that the disputed CWA coverage exists, did Congress, in enacting the CWA, exceed its authority under the Commerce Clause of the Constitution? Implicating hot-button legal issues such as federal-state relations under the Commerce Clause and private property rights, and affecting the reach of several CWA provisions outside the permitting program, the Court’s decision is sure to be of great interest.