Rapanos v . United States Rapanos v . United States , 547 U . S . 715 ( 2006 ) , was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act . It was the first major environmental case heard by the newly appointed Chief Justice , John Roberts and Associate Justice , Samuel Alito . The Supreme Court heard the case on February 21 , 2006 and issued a decision on June 19 , 2006 . While five justices agreed to void rulings against the plaintiffs , who wanted to fill their wetlands to build a shopping mall and condos , the court was split over further details , with the four more conservative justices arguing in favor of a more restrictive reading of the term " navigable waters " than the four more liberal justices . Justice Kennedy did not fully join either position . The case was remanded to the lower court . Ultimately , Rapanos agreed to a nearly $ 1 , 000 , 000 settlement with the EPA while not admitting to any wrongdoing . Background . The case involves developers John A . Rapanos ( Midland , Michigan ) and June Carabell whose separate projects were stopped because of the environmental regulations that make up the Clean Water Act . In the late 1980s , Rapanos filled of wetland that he owned with sand in preparation for the construction of a mall without filing for a permit . He argued that the land was not a wetland and that he was not breaking the law , but his own consultant and state employees disagreed . Rapanos claimed that his land was up to from any navigable waterways . However , the term " navigable waterway " has been broadly interpreted by the U . S . Environmental Protection Agency to include areas connected to or linked to waters via tributaries or other similar means . Rapanos was convicted of two felonies for filling wetlands in violation of law in 1995 . The conviction was overturned and restored several times but , in the end , he was forced to serve three years of probation and pay $ 5 , 000 in fines . Eventually , Rapanos appealed the civil case against him , which included millions of dollars of fines , to the Supreme Court of the United States . Carabell , who was involved in the associated case " Carabell v . United States Army Corps of Engineers " , did seek a permit to build condominiums on of wetlands , but the request was denied by the Army Corps of Engineers . Carabell took the issue to the courts , arguing that the federal government did not have jurisdiction . After losing in the Federal District Court and the Sixth Circuit Court of Appeals , Carabell appealed to the United States Supreme Court . Opinion of the Court . The Clean Water Act governs discharges to " navigable waters . " Although the law contains language defining navigable waters as " waters of the United States , " the U . S . Supreme Court rejected the position of the Army Corps of Engineers that its authority over water was essentially limitless under the Clean Water Act . In Rapanos v . United States , the Supreme Court clarified that the term " waters of the United States " " includes only those relatively permanent , standing or continuously flowing bodies of water ' forming geographic features ' that are described in ordinary parlance as ' streams [ , ] . . . oceans , rivers , [ and ] lakes . ' " All waters with a " significant nexus " to " navigable waters " are covered under the CWA ; however , the words " significant nexus " remains open to judicial interpretation and considerable controversy . Some regulations included water features such as intermittent stream s , playa lake s , prairie pothole s , sloughs and wetland s as " waters of the United States " In Rapanos v . United States , the Army Corps of Engineers applied that broad definition , seeking millions of dollars in fines and penalties from John A . Rapanos in Michigan who drained and filled of wetland with sand despite warnings from the Michigan Department of Natural Resources ( MDNR ) , the advice of his own private consultant , a cease - and - desist letter from the MDNR , and finally an administrative compliance order from the EPA . The Army Corps of Engineers claimed that by filling the wetland he had discharged a pollutant into the " waters of the United States . " The US . Supreme Court rejected that position in a 4 - 1 - 4 plurality , holding that isolated wetlands could not be considered " waters of the United States " for purposes of the CWA . The plurality opinion states 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 . In addition , a wetland is jurisdictional if there exists a continuous surface water connection between it and a relatively permanent waterbody , such that it is difficult to determine where the waterbody ends and the wetland begins . Justice Kennedy ’ s concurrence takes a different approach , holding that a wetland or non - navigable waterbody falls within the Clean Water Act ’ s ambit if it bears a " significant nexus " to a traditional navigable waterway . Such a nexus exists where the wetland or waterbody , either by itself or in combination with other similar sites , significantly affects the physical , biological , and chemical integrity of the downstream navigable waterway . Subsequent developments . Because no single " Rapanos " opinion garnered a majority of the justices ’ votes , it is unclear which opinion sets forth the controlling test for wetlands jurisdiction . Chief Justice Roberts observed that the lower courts would likely look to " Marks v . United States " to guide them in applying the competing " Rapanos " standards . " Marks " provides that , “ [ w ] hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices , the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . ” Justice Stevens , writing the principal " Rapanos " dissent , suggested that lowers courts could use either the plurality ’ s or Justice Kennedy ’ s test , because both tests would command the support of at least five justices . ” To date , seven federal appellate courts have been presented with the issue of which " Rapanos " jurisdictional test is controlling . The Fifth Circuit in " United States v . Lucas " and the Sixth Circuit in " United States v . Cundiff " ultimately avoided the question , because those courts determined that the evidence presented was adequate to support federal jurisdiction under either standard . The Seventh Circuit in " United States v . Gerke " , the Ninth Circuit in " Northern California River Watch v . City of Healdsburg " , and the Eleventh Circuit in " United States v . Robison " held that Justice Kennedy ’ s opinion ( the " significant nexus " test ) is controlling . The First Circuit in " United States v . Johnson " and the Eighth Circuit in " United States v . Bailey " held that jurisdiction may be established under either " Rapanos " test . One district court has held that the " Rapanos " plurality opinion ( the " continuous surface water connection " test ) is controlling . As Chief Justice Roberts anticipated , the courts adopting the Kennedy standard have done so by invoking " Marks " . Under " Marks " , a split decision ’ s binding legal rule is found in the opinion taken by the concurring justices on the narrowest grounds , which has been interpreted as meaning the opinion that is the “ logical subset ” of the other opinions in the case . As applied to " Rapanos " , " Marks " dictates that if either the plurality or the Kennedy test is a subset of the other , then that test is controlling . The appellate courts that have followed the Kennedy test have concluded that it is a logical subset of the " Rapanos " plurality test and therefore binding . The appellate courts that have adopted both " Rapanos " tests — the First and Eighth Circuits — have concluded that the " Marks " rule does not apply to " Rapanos " and that both tests are equally valid . The Supreme Court has denied petitions for writ of certiorari in six of the seven circuit court cases addressing the " Rapanos " split - decision question . ( The " Bailey " appellant did not file a petition ) . It is therefore unlikely that the Supreme Court will clarify this question in the near future .