▪ 2006 Land Use in Review: Clean Water Act Jurisdiction

Rapanos v. United States, 547 U.S. ___ (Jun 19, 2006) was this year's big environmental case from the U.S. Supreme Court, yet it did little to resolve the question over the geographic scope of "navigable waters" as used in the Clean Water Act.  The CWA requires a property owner seek a permit from the Army Corps of Engineers prior to any activity that may involve "navigable waters of the United States."  The facts of the case are set out here.

The Court split 4-4-1, holding to overturn the decision of the Corps to require a Michigan landowner to seek a permit, but could not agree on a rationale.  The plurality decision left most commentators scratching their heads, unsure of what the rule of law was in the wake of the decision, and how to apply a ruling on which there was no majority opinion.  As in last term's Kelo and Lingle cases, Justice Kennedy issued a separate opinion that may forecast the eventual majority rule of law. 

Since I first wrote about the Rapanos decision, the issue has not become any clearer.  The lower courts are split as to how to apply the various opinions, and how to analyze CWA jurisdiction.  Another landowner caught up in the CWA net has asked for cert review, that as of this post, has not been acted upon by the Court. 

Until the Supreme Court resolves the question, the lower courts will be as confused as the commentators, and property owners who may be affected remain in legal purgatory.

Link: Rapanos blog.