Repealing Rapanos: Shrinking the Clean Water Act’s Jurisdiction

By: Adam Hutchinson

It is not often that a criminal appeal can change the face of American environmental law and change the jurisdiction of major environmental legislation. This is why anyone concerned with ecological diversity or clean water ought to be watching closely for the Supreme Court’s upcoming decision in United States v. Hughes.

On the face of it, Hughes[i] appears to have little connection to either environmental law or the jurisdictional scope of federal agencies. Hughes, after all, is a case concerning whether a federal criminal defendant who has negotiated a plea bargain is eligible to have her sentencing range reduced after the Sentencing Commission has reduced the range for that particular crime. Defendants who are convicted of crimes whose sentencing range is subsequently lowered are already understood to be eligible for such a reduction.[ii] However, in Freeman v. United States, the Supreme Court of the United States was split as to whether this rule also applied to persons who entered into plea bargains.[iii] Ultimately, there were five votes for the result of Freeman but only a plurality of four votes for the reasoning supporting the result[iv]

However, since there was no majority opinion to rely on in Freeman, federal courts applied the Marks Rule. The Marks Court held that, “When 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 . . .’”[v] That is, when the Supreme Court reaches a majority result with only a plurality in reasoning, federal courts are to apply the reasoning of the concurring justice as the holding of the case and construe it as narrowly as possible. The rule from Marks then is likely to be implicated in any attempt to resolve the interpretative dispute in Hughes.[vi] The United States Supreme Court has recently taken up Hughes and may decide to either modify or overrule the Marks rule.

The demise of the Marks Rule—if the Supreme Court does decide to overrule or substantially modify it—would have a considerable impact upon federal environmental regulation. In particular, it may greatly decrease the regulatory scope of the Clean Water Act, which controls the discharge of pollutants into the “navigable waters” of the United States.[vii] While the full regulatory scope of the CWA is beyond the scope of this post, it is worth noting that the CWA has been enormously successful in raising water quality standards in at least some regions. For instance, since enactment of the CWA, pollutants in Southern California have been reduced by some 65%, even though there have been overall increases in population to the region of 59% and effluent volume increases by 31%.[viii]


As mentioned earlier, the jurisdiction of the CWA is limited to “waters of the United States.” There is, however, no statutory definition of “waters of the United States” in the text of the CWA. In the absence of any strict definition of the CWA’s jurisdiction the EPA and Army Corps of Engineers began to use the CWA’s regulatory power to protect bodies of water that may not have fit the popular conception of “waters of the United States.” In particular, the EPA began to use the CWA to protect wetlands—bodies of water that do not flow into others (unlike streams or rivers) and may only exist seasonally or intermittently (unlike ponds and lakes). Wetlands are great sources of ecological diversity[ix], and the CWA’s regulatory force protects them from being filled in with dirt and debris during construction projects.[x]

In 2006, the Supreme Court of the United States weighed in on what constituted a “navigable water of the United States” in Rapanos v. United States:

On this definition, “the waters of the United States” include only relatively permanent, standing or flowing bodies of water. The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows.”[xi]

This definition of “waters of the United States” effectively narrowed the bodies of water that the EPA could enforce the standards prescribed by the CWA, especially with respect to seasonal bodies of water.

However, because of the interpretive rule from Marks, the plurality’s definition of “waters of the United States” has never been enforced. Instead, federal courts have generally enforced the definition offered by Justice Kennedy’s concurrence in Rapanos, in which “wetlands”—and other intermittent or temporary bodies of waters—are considered “waters of the United States if such bodies share a significant nexus with more “traditional” waters bodies of the Unites States.[xii] Kennedy’s definition of “waters of the United States” significantly enlarges the jurisdiction of the CWA over the plurality’s. Instead of needing to be “present, fixed bodies of water” in order to be eligible for the CWA’s regulatory protection, wetlands only need to share some significant connection with such a body.

What the Supreme Court decides to do with the rule from Marks in its upcoming Hughes decision could greatly impact the bodies of water that are eligible to receive the CWA’s regulatory protection. If the Court decides to reverse Marks and hold that plurality opinions control not only the result, but also the set the rule that lower courts must follow, then the definition of what constitutes a water of the United States would be greatly narrowed. Moreover, many wetlands that are currently protected by the CWA would no longer qualify for such protection going forward.

So, while United States v. Hughes may technically be a case revolving around criminal sentencing, it has the potential to change the face of water quality protection in the United States.

[i] United States v. Hughes, 849 F.3d 1008 (11th Cir. 2017).

[ii] 18 U.S.C. § 3582(C)(2) (LEXIS through Pub. L. No. 115-117 (excluding Pub. L. No. 115-91)).

[iii] 564 U.S. 522 (2011).

[iv] Id.

[v] Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 153 U.S. 169 n.15 (1976)).

[vi] See Juan Carolos Rodriguez, 4 Environmental Rulings That Flew Under the Radar in 2017 (Jan. 5, 2018, 8:05 PM,

[vii] 33 U.S.C. § 1251 (LEXIS through Pub. L. No. 115-117 (excluding Pub. L. No. 115-91)).

[viii] Eric D. Stein, How Effective has the Clean Water Act Been at Reducing Pollutant Mass Emissions to the Southern California Bight Ove the Past 35 Years?, PubMed (last visited Jan. 18, 2018).

[ix] See About Wetlands, Austl. Dep’t of Energy, (last visited Jan. 18, 2018).

[x] See Rapanos v. United States, 547 U.S. 715, 719 (2006).

[xi] Id. at 732-33.

[xii] Id. at 780. See Rodriguez, supra note vi. (“Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’”).