The U.S. Supreme Court issued an opinion June 19, 2006 in Rapanos v. United States and Carabell v. United States, cases focusing on the extent of the jurisdiction of the Corps of Engineers (“COE”) over wetlands under the Clean Water Act (“Act”). The Act allows the Corps to regulate “navigable waters of the United States.” However, “navigable waters” under the Act is defined as “the waters of the United States, including the territorial seas” and are not limited to waters that are “navigable” in the traditional sense. 33 U.S.C. §1362(7). For years the Corps interpreted the Act expansively to assert jurisdiction over virtually all wetlands regardless of how remote the connection to a navigable water, using the Commerce Clause as a basis. That was prior to the Supreme Court decision in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 167, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC”), which held that “isolated” wetlands do not fall within the jurisdiction of the Corps and that wetlands must be adjacent or have a “significant nexus” to navigable waters to fall within the Corps’ jurisdiction. Following SWANCC, the Corps and the courts have wrestled with the meaning of “isolated” and “significant nexus,” with the Corps ever seeking to retain the broadest jurisdiction. .
