A. Background

These consolidated cases concern four properties. John Rapanos or his affiliated parties were held to be civilly liable for filling wetlands without a permit on three separate properties: Salzburg, Hines Road, and Pine River.[3] The Carabell property owners were denied a permit to place fill on a single property. In both cases, the petitioners claim that federal jurisdiction does not extend to their property; therefore, even if there are wetlands on the properties, those wetlands cannot be regulated by the Corps.

An issue in these cases is the proper meaning of "navigable waters," which for purposes of the CWA, was defined by Congress as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7).[4] The Corps was delegated the responsibility to further define "waters of the United States." The pertinent part of the Corps’ current (and overly expansive) definition is:

(a) The term waters of the United States means

         (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

         (2) All interstate waters including interstate wetlands;

         (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial purpose by industries in interstate commerce;

         (4) All impoundments of waters otherwise defined as waters of the United States under the definition;

         (5) Tributaries of waters identified in paragraphs (a)(1) through (4) of this section;

         (6) The territorial seas;

         (7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) of this section.

33 C.F.R. § 328.3 (2005).

It is unclear whether water from the Carabell petitioners’ property ever reaches water that meets the definition in (a)(1).[5] The magistrate judge’s recommendation, which was accepted in its entirety by the district court, described the property as follows:

Plaintiff ’s property in this case is not isolated. It is undisputed that the property is adjacent to an unnamed ditch, and that ditch connects to the Sutherland-Oemig Drain. (Tr. 55- 61). The Drain, which neighbors a corner of the property, connects to Lake St. Clair.

Carabell App. at 46a. The unnamed ditch appears to have been dug "some 50-60 years ago." Id. at 62a. The spoils from that ditch left a man-made berm that separates the property from the ditch. Id. The Carabell property owners claimed that the water from the property never reached the drain, id. at 22a, but the magistrate judge did not make a specific finding in this regard.

A specific finding was made in regard to all three properties owned by the Rapanos petitioners; the trial court found that water from all three properties would eventually reach water that meets the (a)(1) definition. At the Salzburg site, the water entered a drain, then a tributary, then a river, then a second river, before it could reach Lake Huron. Rapanos App. at B11. At the Hines Road site, the water went from a drain to a navigable river. Id. at B20. Finally, at the Pine River site, there was a connection to a river that drained into Lake Huron. Id. at B26. The Rapanos petitioners claim that the nearest navigable water for the Salzburg site is twenty miles away, Cert. Brief of Rapanos Pet’rs-Appellants at 6, but the trial court did not make a specific finding in this regard. Nevertheless, a portion of the Salzburg site was the basis of John Rapanos’ criminal conviction, and the Sixth Circuit stated, "During the course of this proceeding, the wetlands in question have been described as between eleven and twenty miles from the nearest navigable-in-fact water." United States v. Rapanos, 339 F.3d 447, 449 (6th Cir. 2003). No findings were made regarding the distances to navigable waters for the Hines Road and Pine River sites.

Thus, with the Carabell site, this Court is faced with a property abutting a drain that may or may not receive surface runoff from the property. With the Rapanos sites, runoff from all three properties may eventually reach a body of water that meets the (a)(1) definition, but it is not clear how far the runoff would have to travel to reach such waters, nor is it clear what the filtering effects of such an extended route might be. In both cases, the property owners contend that their property is not covered by the CWA.

[3] John Rapanos also was criminally convicted for improperly placing fill on the Salzburg property. The criminal conviction is not at issue here.

[4] The history of the CWA and of the federal regulations regarding the Corps’ definition of "navigable waters" and/or "waters of the United States" will be discussed in more detail below.

[5] As will be discussed below, in SWANCC, this Court has clearly held that Congress meant to regulate waters that meet the (a)(1) definition and those wetlands adjacent to and inseparably bound up with such waters.