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Taking the environment to court: Rapanos v. United States


This case tackled the age-old struggle of development vs. wetlands preservation. Wetlands are important for the ecosystem because they provide critical habitat to species that are essential to the circle of nutrients. They provide an outlet for navigable waters, something that was a highlight of this case. Rapanos was brought to court over a shopping mall that he planned to build on 22 acres of wetlands that he had drained and filled with sand, despite warnings from the EPA, Army Corps of Engineers, and his private consultant. The court was unable to come up with a majority decision, and the case was transferred to a lower court, which resulted in Rapanos paying $1,000,000 in damages without admitting to any of the allegations.

The court was split over the definition of “navigable waters”, which is left open-ended by the EPA. The plurality definition was that the “Clean Water Act confers federal jurisdiction over non-navigable waters only if they exhibit a relatively permanent flow, such as a river, lake, or stream”. They also said that a wetland is jurisdictional if it can be established as a permanent water body – almost impossible to prove with concrete evidence. Justice Kennedy’s concurrence stated that a wetland/non-navigable waterway is subject to jurisdiction if there is a “significant nexus” to a traditionally defined navigable waterway. The plurality definition is much more conservative, and does not completely take into account the way that wetlands work and how essential they are to the ecosystem. Not only that, they are difficult to replenish once destroyed, which makes their violation even more severe.

I agree with Justice Kennedy’s concurrence, because the subtle change in his definition provided for the ecological significance of wetlands and non-navigable waterways. Even though they do not have permanent flow, they have annual flow – this is far more important than establishing whether they’re in “use” throughout the entire period of the year. Wetlands are very important for flood control, which means that for at least a part of the year, they are clearly correlated with a navigable waterway. All waterways are connected in their most basic sense, unless it is man-made and maintained. Without the wetlands, other areas of the navigable waterway, as well as surrounding lands, would be substantially adversely affected. Therefore, it is safe to assume that a “significant nexus”, which I would argue could consist of even groundwater, warrants the treatment of wetlands/non-navigable waterways to be the same as traditional navigable waterways.

The definition given by the plurality can be manipulated to match Justice Kennedy’s definition easily, if those individuals were not actually as conservative as they put forth in their decision. If evaluated by a third part, the “relatively permanent flow” and “permanent water body” phrases could be interpreted to include almost all waterways with at least an annual flow. In reality, both definitions are quite vague, and I think that a more concrete definition would have provided for more wetlands protection in cases succeeding this one. However, this was not the case and wetlands face great challenges in establishing their preservation, mostly because of the humble nature of their contributions to the ecosystem. Only once they are gone does society realize the impact they had on the functionality of the surrounding waterways and biosphere.


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© 2019 Richelle Tanner

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