Rapanos v. United States
Citation: 36 ELR 20116
No. 04-1034, (U.S., 06/19/2006)
The U.S. Supreme Court vacates and remands for further proceeding two Sixth Circuit opinions holding that the U.S. Army Corps of Engineers (the Corps) had jurisdiction over state wetlands adjacent to a tributary of traditional navigable waters but separated by a berm, and wetlands lying near ditches or man-made drains that eventually empty into a tributary of traditional navigable waters. Although five Justices hold that the cases should be vacated and remanded, there is no opinion of the Court. Four Justices, in an opinion by Justice Scalia, hold that for the Corps to have jurisdiction over any wetlands, there needs to be a continuous permanent surface flow and connection to traditional navigable waters. Consequently, they would vacate the lower court decisions. Four dissenting Justices, in an opinion by Justice Stevens, would have affirmed the decisions of the Sixth Circuit. Justice Kennedy provides the deciding vote. He holds that for the Corps to have jurisdiction over the wetlands at issue, there needs to be a significant nexus between the wetlands and the traditional navigable water. In such cases, one must decide on a case-by-case basis whether the wetlands significantly affect the chemical, physical, and biological integrity of the associated traditional navigable water. Because the lower court failed to apply the significant nexus test, he concurs with Justice Scalia's opinion in judgment only that the cases should be vacated and remanded. Scalia, J., announces the judgment of the Court, and delivers an opinion, in which Roberts, C. J., and Thomas and Alito, JJ., join. Roberts, C.J., files a concurring opinion. Kennedy, J., files an opinion concurring in the judgment. Stevens, J., files a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., join. Breyer, J., files a dissenting opinion.