Court Revises Clean Water Limits

WASHINGTON, DC-In a new ruling on two parallel cases, the Supreme Court has curtailed the Army Corps of Engineers’ authority under the Clean Water Act – but to what degree remains unclear. In Rapanos v. US and Carabell v. US Army Corps of Engineers, the High Court found that the Corps exceeded its authority when it denied two Michigan developers permits to build on wetlands linked to larger bodies of water through man-made drainage ditches. The 5-4 ruling found that a simple hydrological connection between a wetland and navigable water does not justify federal jurisdiction.

Critics of the Corps’s decision-making powers in this area say the ruling is only a start in clarifying the intent of the Act and the Corps’ regulatory authority. “The National Multi Housing Council has long asserted that the current regulatory system is overly broad, unevenly applied and excessively burdensome with respect to the time and costs involved in the permitting process,” says Eileen Lee, NMHC’s vice president of environment. The council filed a “friend of the court” brief in support of this view.