The Wetlands Coverage of the Clean Water Act is Revisited by the Supreme Court:: Rapanos v. United States
Prepared for Members and Committees of Congress
In 1985 and 2001, the Supreme Court grappled with issues as to the geographic scope of the
wetlands permitting program in the federal Clean Water Act (CWA). In 2006, the Supreme Court
rendered a third decision, Rapanos v. United States, on appeal from two Sixth Circuit rulings. The
Sixth Circuit rulings offered the Court a chance to clarify the reach of CWA jurisdiction over
wetlands adjacent only to nonnavigable tributaries of traditional navigable waters—including
tributaries such as drainage ditches and canals that may flow intermittently. (Jurisdiction over
wetlands adjacent to traditional navigable waters was established in one of the two earlier
The Court’s decision provided little clarification, however, splitting 4-1-4. The four-justice
plurality decision, by Justice Scalia, said that the CWA covers only wetlands connected to
relatively permanent bodies of water (streams, rivers, lakes) by a continuous surface connection.
Justice Kennedy, writing alone, demanded a substantial nexus between the wetland and a
traditional navigable water, using an ambiguous ecological test. Justice Stevens, for the four
dissenters, would have upheld the existing broad reach of Corps of Engineers/EPA regulations.
Because no rationale commanded the support of a majority of the justices, lower courts are
extracting different rules of decision from Rapanos for resolving future cases. Corps/EPA
guidance issued in December 2008 says that a wetland generally is jurisdictional if it satisfies
either the plurality or Kennedy tests. The ambiguity of the Rapanos decision and questions about th
the agencies’ guidance have increased pressure on Congress to provide clarification. In the 110
Congress, committees held hearings on legislation intended to do so (H.R. 2421 and S. 1870).
The legal and policy questions associated with Rapanos—regarding the outer geographic limit of
CWA jurisdiction and the consequences of restricting that scope—have challenged regulators,
landowners and developers, and policymakers for more than 30 years. The answer may determine
the reach of CWA regulatory authority not only for the wetlands permitting program but also for
other CWA programs; the CWA has one definition of “navigable waters” that applies to the entire
While regulators and the regulated community debate the legal dimensions of federal jurisdiction
under the CWA, scientists contend that there are no discrete, scientifically supportable boundaries
or criteria along the continuum of wetlands to separate them into meaningful ecological or
hydrological compartments. Wetland scientists believe that all such waters are critical for
protecting the integrity of waters, habitat, and wildlife downstream. Changes in the limits of
federal jurisdiction highlight the role of states in protecting waters not addressed by federal law.
From the states’ perspective, federal programs provide a baseline for consistent, minimum
standards to regulate wetlands and other waters. Most states are either reluctant or unable to take
steps to protect non-jurisdictional waters through legislative or administrative action.
Backgr ound ..................................................................................................................................... 1
The Sixth Circuit Decisions in Rapanos and Carabell....................................................................3
The Supreme Court Decision..........................................................................................................5
The EPA/Corps Guidance on Rapanos............................................................................................9
Filling the Gaps.......................................................................................................................15
Author Contact Information..........................................................................................................18
n June 19, 2006, the Supreme Court decided Rapanos v. United States.1 The decision
addressed the asserted jurisdiction of the U.S. Army Corps of Engineers and the
Environmental Protection Agency (EPA) over wetlands adjacent to “waters of the United 2O
States,” the problematic phrase used by the Clean Water Act (CWA) to define the geographic
scope of the act’s wetlands permitting program.
Actually, two separate decisions, consolidated for purposes of argument and decision, were before
the Court. Both were from the Sixth Circuit, and both involved Michigan wetlands. In Rapanos v. 3
United States, the issue was whether the CWA’s wetlands permitting program applies to wetlands
that are only distantly connected to traditional navigable waters—or at a minimum, do not abut 4
them. In Carabell v. U.S. Army Corps of Engineers, the issue was whether that same program
reaches wetlands that are not hydrologically connected to any traditional navigable water. Both
cases also raised a constitutional question: if the disputed CWA coverage exists, did Congress 5
exceed its authority under the Commerce Clause of the Constitution?
In taking these separate cases, the Court was revisiting a CWA conundrum with which it and
many other courts had wrestled for three decades: which wetlands are to be regulated under the
CWA and which fall solely within the jurisdiction of the states in which they are located.
Wetlands, with a variety of physical characteristics, are found throughout the country. They are
known in different regions as swamps, marshes, fens, potholes, playa lakes, or bogs. Although
these places can differ greatly, they all have distinctive vegetative assemblages because of the
wetness of the soil. Some wetland areas may be continuously inundated by water, while other
areas may not be flooded at all. In coastal areas, flooding may occur on a daily basis as tides rise
From the earliest days, Congress has grappled with where to set the outer bound of federal
authority over the nation’s waterways, often with regard to uses of waterways that impaired
navigation. The phrase Congress often used to define federal authority was “navigable waters of 6
the United States.” The concept proved an elastic one: in Supreme Court decisions from the early
to mid-twentieth century, “navigability” underwent a substantial expansion “from waters in actual
use to those which used to be navigable to those which by reasonable improvements could be 7
made navigable to nonnavigable tributaries affecting navigable streams.”
1 547 U.S. 715 (2006).
2 33 U.S.C. §§ 1251-1387.
3 United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004).
4 Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004).
5 The Commerce Clause, U.S. Const. art. I, § 8, cl. 3, gives the Congress authority “To regulate Commerce ... among
the several States.... ”
6 See in particular two precursors of the CWA: Rivers and Harbors Act of 1899 §§ 10 (33 U.S.C. § 403), and 13 (33
U.S.C. § 407). Section 13 covers tributaries of navigable waters as well.
7 William H. Rodgers, Jr., Handbook on Environmental Law 401 (1977) (footnotes omitted).
Notwithstanding the Court’s enlargement of “navigability,” the Congress considering the 8
legislation that became the CWA of 1972 felt that the term was too constricted to define the
reach of a law whose purpose was not maintaining navigability, but rather preventing pollution.
Accordingly, Congress in the CWA retained the traditional term “navigable waters,” but defined it 9
to mean “waters of the United States”—seemingly minimizing the constraint of navigability. The
conference report said that the new phrase was intended to be given “the broadest possible 10
Among the provisions in the 1972 clean water legislation was section 404,11 which together with
section 301(a) requires persons wishing to discharge dredged or fill material into “navigable 12
waters,” as newly defined, to obtain a permit from the U.S. Army Corps of Engineers. The
Corps’ initial response to section 404 was to apply it solely to waters traditionally deemed
navigable (which included few wetland areas), despite the broadening “waters of the United 13
States” definition and conference report language. Under a 1975 court order, however, the Corps 14
issued new regulations that swept up a range of wetlands. This broadening ushered in a debate,
continuing today, as to which wetlands Congress meant to reach in the section 404 permit
program. At one time or another, the debate has occupied all three branches of the federal
As the title of this report indicates, Rapanos and Carabell are not the Supreme Court’s first foray 15
into the section 404 jurisdictional quagmire. In 1985, in Riverside Bayview Homes, Inc. v. 16
United States, the Court unanimously upheld as reasonable the Corps’ extension of its section
United States.” Under the Corps regulations, adjacent wetlands are wetlands adjacent to any
non-wetland waterbody that constitutes a water of the United States—such as navigable bodies of
water or interstate waters, or their tributaries. The Court reasoned that the water-quality objectives
of the CWA were broad and sensitive to the fact that water moves in hydrologic cycles. Due to the
frequent difficulties in defining where water ends and land begins, the Court could not say that
the Corps’ conclusion that adjacent wetlands are inseparably bound up with “waters of the United
States” was unreasonable, particularly given the deference owed to the Corps’ and EPA’s
ecological expertise. Also persuasive was the fact that in considering the 1977 amendments to the
CWA, Congress vigorously debated but ultimately rejected amendments that would have
narrowed the Corps’ asserted jurisdiction under section 404.
8 P.L. 92-500. To be precise, the 1972 enactment was titled the Federal Water Pollution Control Act Amendments of
1972. It was only after the 1977 amendments thereto that the act as a whole became known as the Clean Water Act.
9 CWA § 502(7), 33 U.S.C. § 1362(7).
10 Conference report S.Rept. 92-1236 at 144, reprinted in 1972 U.S. Code Cong. & Admin. News 3776, 3822.
11 33 U.S.C. § 1344.
12 Section 301(a), 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant, except in compliance with various
CWA sections, including section 404.
13 NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
14 40 Fed. Reg. 31320 (July 25, 1975), amending 33 C.F.R. part 209.
15 See generally Rapanos v. United States, 547 U.S. 715. 724-726 (2006).
16 474 U.S. 121 (1985).
17 33 C.F.R. § 328.3(a)(7). An identical EPA definition is at 40 C.F.R. § 230.3(s)(7).
In 2001, the Court returned to the geographic reach of section 404. The decision in Solid Waste 18
Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) directly involved 19
the “isolated waters” component of the Corps’ definition of “waters of the United States,” rather
than the “adjacent wetlands” component at issue above. “Isolated waters,” in CWA parlance (the
regulations don’t actually use the phrase), are waters that are not traditional navigable waters, are
not interstate, are not tributaries of the foregoing, and are not hydrologically connected to
navigable or interstate waters or their tributaries—but whose “use, degradation, or destruction 20
[nonetheless] could affect interstate commerce.” Illustrative examples listed in the regulations
include “intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, 21
wetlands, sloughs, [or] prairie potholes” with an interstate commerce nexus, or connection. The
issue before the Court was whether “waters of the United States” is broad enough to embrace the
Corps’ assertion of jurisdiction over such “isolated waters” purely on the ground that they are or
might be used by migratory birds that cross state lines—known as the Migratory Bird Rule.
In a 5-4 ruling, the majority opinion held that the Migratory Bird Rule was not authorized by the
CWA. The decision’s rationale was much broader, however, appearing to preclude federal
assertion of 404 jurisdiction over isolated, nonnavigable, intrastate waters on any basis—indeed, 22
over wetlands not adjacent to “open water.” This disparity between the Court’s holding and its
rationale occasioned considerable litigation in the lower courts, the majority of which opted for a
narrow reading of SWANCC, hence a broad reading of remaining Corps jurisdiction under section
404. Such uncertainties as to the Corps’ isolated waters jurisdiction after SWANCC focused
attention on the alternative bases in Corps regulations for asserting 404 jurisdiction—such as the
existence of “adjacent wetlands.” Neither the Corps of Engineers nor EPA, however, has modified 23
its section 404 regulations since SWANCC.
The new spotlight on the concept of adjacent wetlands is the backdrop for the Supreme Court’s
consideration of Rapanos and Carabell, two “adjacent wetlands” cases.
Although the Supreme Court consolidated Rapanos and Carabell, the issues in each case as to
Corps and EPA “adjacent wetlands” jurisdiction are slightly different.
Rapanos v. United States: Wetlands adjacent to a tributary (man-made ditch) that ultimately
flows into traditional navigable waters.
18 531 U.S. 159 (2001).
19 33 C.F.R. § 328.3(a)(3). An identical EPA definition is at 40 C.F.R. § 230.3(s)(3).
20 33 C.F.R. § 328.3(a)(3).
21 Id. (emphasis added).
22 In SWANCC dictum, the Court stated: “In order to rule for the [Corps of Engineers], we would have to hold that the
jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the
statute will not allow this.” 531 U.S. at 168 (emphasis in original).
23 The agencies did consider initiating a rulemaking to consider “issues associated with the scope of waters that are
subject to the Clean Water Act” in light of SWANCC, 68 Fed. Reg. 1991 (2003), but the effort was abandoned in
The Rapanos case arose as a civil enforcement action filed by the United States in 2000, seeking
penalties for the filling of three Michigan wetlands without a section 404 permit. (In a separate
federal criminal action, Mr. Rapanos was convicted in 1995 of illegally discharging fill material
into protected wetlands.) As in Riverside Bayview, the issue was the Corps’ jurisdiction under the
“adjacent wetlands” component of its regulations defining “waters of the United States.” In
particular, plaintiffs argued that SWANCC did more than throw out the Migratory Bird Rule; it
also barred section 404 regulation of wetlands that do not physically abut a traditional navigable
In ruling that section 404 reached the Rapanos’ wetlands, the Sixth Circuit held that immediate
adjacency of the wetland to a traditional navigable water is not required. Rather, what is needed is
a “significant nexus”—a ubiquitous phrase in section 404 court decisions lifted from SWANCC’s 24
explanation of Riverside Bayview—between the wetlands and traditional navigable waters.
“Significant nexus,” in turn, can be satisfied by the presence of a “hydrological connection.”
Thus, the fact that the Rapanos’ wetlands had surface water connections to nearby tributaries of
traditional navigable waters was sufficient for section 404 jurisdiction. Nor did it seem to matter
to the court that the hydrological connection to traditional navigable waters was, for at least one
of the Rapanos wetlands, distant—surface waters from this wetland flow into a man-made drain
immediately north of the site, which empties into a creek, which flows into a navigable river.
According to the record, this wetland is between eleven and twenty miles from the nearest
navigable-in-fact water. In ruling that a surface water connection to a tributary of a navigable
water was enough, the circuit aligned itself with the large majority of appellate courts to rule on
this issue since SWANCC.
In its petition for certiorari to the Supreme Court, the Rapanoses asked whether the CWA’s reach
extends to nonnavigable wetlands “that do not even abut a navigable water.” If a hydrological
connection, “no matter how tenuous or remote,” is all that is required, the Rapanos’ petition also
asked whether such CWA jurisdiction would exceed Congress’ power under the Commerce
Carabell v. U.S. Army Corps of Engineers: Wetlands adjacent to a tributary (man-made ditch)
that ultimately flows into traditional navigable waters—but wetlands separated from the
tributary by a manmade berm.
Like the Rapanoses, the Carabells owned a wetland tract in Michigan. They wished to develop it
for a condominium project. Unlike the Rapanoses, the Carabells pursued the required wetlands
permitting process—state, then federal. The Carabell case was their challenge to the Corps’
denial of the section 404 permit, and raised, among other things, the issue of whether the Corps
had jurisdiction over the wetland.
The Sixth Circuit held that “adjacent wetlands” jurisdiction existed under the Corps regulations,
even though the wetland was separated from a tributary of “waters of the United States” by a
four-foot-wide manmade berm that blocked immediate drainage of surface water from the parcel 25
to the tributary. The existence of the berm meant, critically, that unlike the wetlands in Rapanos,
24 SWANCC, 531 U.S. at 167.
25 Corps of Engineers regulations define the word “adjacent” in “adjacent wetlands” to mean “bordering, contiguous, or
neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers ... are ‘adjacent
wetlands.’” 33 C.F.R. § 328.3(c).
the wetlands here lacked any hydrological connection to navigable waters at all. Parenthetically,
the fact that the “tributary” was merely a man-made ditch (which emptied into a creek, which
flowed into a navigable lake) did not appear to be an issue in the case, as it was in Rapanos.
Finally, the court endorsed the view of the majority of courts addressing the question that
SWANCC spoke only to the Corps’ “isolated waters” jurisdiction; it did not narrow the agency’s
“adjacent wetlands” authority involved here and broadly construed in Riverside Bayview.
In its petition for certiorari, the Carabells asked whether section 404 extends to “wetlands that are
hydrologically isolated from any of the ‘waters of the United States’.” If so, the petition asked the
same follow-up question as in Rapanos: Would such CWA jurisdiction exceed Congress’ power
under the Commerce Clause?
For many who had waited so long to have “waters of the United States” clarified, the Rapanos
decision (addressing the Sixth Circuit decisions in both Rapanos and Carabell) was a
disappointment. In three major opinions, the court split 4-1-4 as to whether the Corps’ assertions
of 404 jurisdiction in the two cases before it comported with the CWA—that is, involved “waters
of the United States.” Justice Scalia wrote a four-justice plurality opinion, ruling that the Corps
had overreached and thus the Sixth Circuit decisions must be vacated and remanded for further
proceedings applying the plurality’s rule. Justice Kennedy, in a lone concurrence, also disagreed
with the Corps’ interpretation of the CWA, but would have applied a different approach than the
plurality. He supplied the fifth vote supporting the vacation and remand, making that the
judgment of the Court. (Five votes is a majority on the Supreme Court.) Finally, Justice Stevens
wrote a four-justice dissent upholding the Corps’ reading of its jurisdiction. Accordingly, he 26
would have affirmed the decisions below.
The problem is that no single rationale in these three opinions commands the support of a
majority of the justices. Thus, lower courts addressing challenges to Corps 404 jurisdiction are
struggling with what rule of decision to extract from Rapanos, taking their cue from either the
Scalia plurality decision or the Kennedy concurrence (more on this later). That being so, it
behooves us to examine both these two opinions, with a brief mention of the dissent.
Justice Scalia’s plurality opinion asserts what is probably the narrowest view of 404 jurisdiction
in the three major opinions, at least in most circumstances. His opening paragraphs set the tone by
describing the substantial costs of applying for 404 permits, and the “immense expansion of 27
federal regulation of land use that has occurred under the Clean Water Act.” This critical tone
continues with the opinion’s description of how the lower courts, “[e]ven after SWANCC,” have
continued to uphold the “sweeping” assertions of jurisdiction by the Corps over tributaries and 28
Justice Scalia continued by construing “waters” in “waters of the United States” to mean only
relatively permanent, standing or flowing bodies of water, such as streams, rivers, lakes, and
26 In addition to these three major opinions, Chief Justice Roberts wrote a brief opinion concurring with the plurality,
and Justice Breyer wrote a brief opinion concurring with the dissenters.
27 547 U.S. at 722.
28 Id. at 726.
other bodies of water “forming geographic features.”29 This definition leads him to exclude 30
“channels containing merely intermittent or ephemeral flow.” Wetlands, our topic here, are
included as “waters of the United States”—that is, are “adjacent” in the Corps’ language—only
when they have a “continuous surface connection” to bodies that are “waters of the United
States” in their own right. By contrast, wetlands with only an intermittent, physically remote
hydrological connection to “waters of the United States” are not covered by section 404,
according to the Scalia opinion.
Importantly, the plurality sought to calm concerns that a narrow reading of section 404 would
eviscerate other sections of the CWA, particularly the point-source permitting program under
section 402 that is the heart of the act. That section, the plurality explained, does not require that
the point source discharge directly into a jurisdictional water. It is enough that the discharged
pollutant is likely to ultimately be carried downstream to such a jurisdictional water. Thus, unlike
with section 404, discharges into non-covered waters could still be regulated.
In contrast to the absolute rules proposed by the plurality, Justice Kennedy’s concurring opinion
proposed a case-by-case test. He picks up on the “significant nexus” test used by the Sixth Circuit
and many other courts—but while the lower courts defined significant nexus as having a 31
hydrological connection with traditional navigable waters, Justice Kennedy used an ambiguous 32
ecological test. A wetland, he declared, has the requisite significant nexus if, alone or in
combination with similarly situated lands in the region, it significantly affects the chemical, 33
physical, and biological integrity of traditional navigable waters. These ecological functions
include flood retention, pollutant trapping, and filtration. Under Kennedy’s opinion, the waters
that perform these functions may be intermittent or ephemeral, and they need not have a surface
hydrological connection to other waters. When, in contrast, their effects on water quality are 34
speculative or insubstantial, the wetland is beyond section 404’s reach.
This formulation, Justice Kennedy explained, allows that when the Corps seeks to regulate
wetlands adjacent to navigable-in-fact waters, adjacency is enough for jurisdiction. In contrast,
for wetlands sought to be regulated based on adjacency to non-navigable tributaries, a significant
nexus must be shown on a case-by-case basis. Importantly, however, the Justice did allow that the
Corps might adopt regulations at some point declaring certain categories of wetlands to have a
significant nexus per se, obviating the case-by-case approach for those wetlands.
Each of the foregoing views, the plurality’s and Justice Kennedy’s, rejects the hitherto prevailing
view that any hydrological connection to a traditionally navigable water, no matter how distant, is
sufficient for coverage. This “any hydrological connection” test had been a key element of the
United States’ assertions of “adjacent wetlands” jurisdiction.
29 Id. at 732-733.
30 Id. at 733-734.
31 Hydrological connection is the test that the Corps has used to demonstrate significant nexus.
32 Soon after Rapanos was decided, a federal district court commented that Justice Kennedy’s opinion “advanced an
ambiguous test—whether a ‘significant nexus’ exists to waters that are/were/might be navigable..... This test leaves no
guidance on how to implement its vague, subjective centerpiece.” United States v. Chevron Pipe Line Co., 437 F. Supp.
2d 605 (N.D. Tex. 2006).
33 547 U.S. at 780.
Finally, the four dissenters found the Corps’ assertion of jurisdiction reasonable in both cases. The
Court’s earlier decision in Riverside Bayview, the dissenters argue, was not confined to wetlands
having continuous surface flow with traditional navigable waters or their tributaries. Rather it had
endorsed jurisdiction over non-isolated wetlands generally, without case-by-case analysis. The
plurality’s concerns about the costs of applying for a permit, they continued, are more properly
addressed to Congress, not to a court.
The jurisdictional questions raised by Rapanos and Carabell presented the Supreme Court with a
“perfect storm” of hot-button issues. First, there is the federalism matter: where do CWA section
404 and the Constitution’s Commerce Clause draw the line between federal and state authority
over wetlands? Second, there are property rights concerns. Some 75% of jurisdictional wetlands
in the lower 48 states are on private property, with the result that protests from property owners
denied section 404 permits (or subjected to unacceptable conditions on same) are often heard—
sometimes in the courts through Fifth Amendment takings suits. Third, Rapanos and Carabell
have pervasive significance within the CWA itself, since “waters of the United States” governs
not only the section 404 wetlands permitting program, but also multiple other provisions and
requirements of that law (see discussion below under “Policy Implications”). In addition, the
Corps’ broad reading of its jurisdiction created novel semantics (such as viewing dry arroyos as
“waters,” and manmade ditches as “tributaries”) that justices inclined to more literal readings of
statutory language would have a hard time accepting.
It was not surprising in light of the above themes that the justices split as they did: the four more
“conservative” justices rejecting the Corps’ expansive view of its adjacent wetland jurisdiction,
the four “liberal/moderates” upholding it, and Justice Kennedy coming down in between (as he
often does) with a case-by-case test, at least until the Corps adopts new rules. The question, as
noted earlier, is what rule of decision the lower courts will discern in Rapanos, with its absence of
a majority rationale, for use in future cases. In practice, courts often look for common approaches
supported by a majority of the justices, looking both to the views of plurality justices (supporting
the judgment of the court in the case) and those of the dissenters (who do not support the
Thus far, lower courts applying Rapanos have drawn different tests from the decision, as was
predicted based on its fractured nature. Five federal circuits have ruled so far—three holding that 35
the Kennedy “significant nexus” test controls, one accepting Justice Stevens’s suggestion that a 36
wetland satisfying either the Kennedy or plurality tests is jurisdictional, and one avoiding the
issue by finding that the Kennedy test, plurality test, and even the dissent’s test were all 37
satisfied. As the footnotes below show, the Supreme Court has declined to review each of the
these circuit decisions, possibly because with no change in justices since Rapanos, it is unable to
agree on how to clarify the decision. District court decisions, at least the reported ones, seem to
35 United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), cert. denied, 77 U.S.L.W. 3319 (December 1, 2008) (No.
08-223); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006), cert. denied, 128 S. Ct. 45 (2007); th
Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9 Cir. 2007), cert. denied, 128 S. Ct. 1225
36 United States v. Johnson, 467 F.3d 56 (1st Cir. 2006), cert. denied, 128 S. Ct. 375 (2007).
37 United States v. Lucas, 516 F.3d 316 (5th Cir.), cert. denied, 129 S. Ct. 116 (2008).
all follow either the Kennedy test alone or the Kennedy-or-plurality test.38 There appears to be no 39
reported decision squarely holding that the plurality test alone governs.
To a considerable extent, the court decisions turn on how the courts read Supreme Court guidance
on what rule of law may be inferred from decisions of the Court in which no rationale commands
the support of five or more Justices. The United States, for its part, has consistently taken the
Kennedy-or-plurality position in litigation, as it did in congressional testimony soon after the 40
Rapanos decision and in the Corps/EPA guidance on interpreting Rapanos (discussed below).
In the wake of Rapanos, several factors arguably put pressure on the Corps and EPA to do a
rulemaking on the scope of “adjacent wetlands” permitting jurisdiction under the CWA (assuming
Congress does not act). One is the fact that no fewer than three of the opinions in Rapanos urged 41
the agencies to do so. A second factor is the labor-intensive nature (and vagueness) of the
Kennedy case-by-case approach, requiring empirical study of each wetland near a non-navigable
tributary. The third factor is the divergence of the lower courts as to the rule to be applied after
Rapanos. One can be confident, however, that anything the Corps and EPA promulgate will find
its way into the courts. At this time, whether the agencies will go beyond their interpretive
guidance to an actual rewrite of regulations is unclear. The agencies state in the guidance that
“further consideration of jurisdictional issues, including clarification and definition of key
terminology, may be appropriate in the future, either through issuance of additional guidance or 42
All of the Rapanos opinions that mention SWANCC seem to accept, without discussion, that
SWANCC eliminates jurisdictional coverage of all isolated, intrastate, nonnavigable waters—not
just those isolated, intrastate, nonnavigable waters where the sole basis for asserting jurisdiction
was the Migratory Bird Rule. Most lower court decisions to broach this issue had adopted the
latter narrower reading of SWANCC. Thus, although only adjacent wetlands were directly
involved in Rapanos, there may be impacts on the Corps’ authority over isolated, intrastate,
nonnavigable waters also.
38See, e.g., United States v. Evans, 2006 Westlaw 2221629 (M.D. Fla. 2006) (Kennedy test or plurality test);
Environmental Protection Information Center v. Pacific Lumber Co., 469 F. Supp. 2d 803 (S.D. Cal. 2007) (bound by
City of Healdsburg to apply Kennedy test only); Simsbury-Avon Preservation Soc’y, LLC v. Metacon Gun Club, Inc.,
472 F. Supp. 2d 219 (D. Conn. 2007) (Kennedy test or plurality test); United States v. Cundiff, 480 F. Supp. 2d 940
(W.D. Ky. 2007) (Kennedy test or plurality test).
39 One reported decision took its cue from the Scalia plurality view, though principally relying on circuit precedent.
United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605 (N.D. Tex. 2006). This decision actually involved the
amendments to the CWA made by the Oil Pollution Act, which uses the same definition of “waters of the United
States” as CWA section 404.
A second decision, holding that the significant nexus test is inapplicable outside the isolated wetlands context
(with the implication that the plurality test alone applies), is too recent to know whether it will be reported. Sierra Club
v. City and County of Honolulu, 2008 Westlaw 3850495 (D. Hawaii August 18, 2008).
40 Cruden, John C., Deputy Assistant Attorney General, Environment and Natural Resources Division, U.S..
Department of Justice, “Statement Concerning Recent Supreme Court Decisions Dealing with the Clean Water Act,”
before the Subcommittee on Fisheries, Wildlife and Water, U.S. Senate Committee on Environment and Public Works,
August 1, 2006, p. 16.
41 See opinions of Justice Kennedy, Justice Breyer, and Chief Justice Roberts.
42 U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, “Clean Water Act Jurisdiction Following the
U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States,” December 2, 2008, p. 3.
Finally, although both petitions for certiorari in Rapanos raised the Commerce Clause issue, the
decision in Rapanos, as expected, was on purely statutory grounds. The plurality, however, did
assert that the Corps view of its adjacent wetlands jurisdiction “stretches the outer limits of 43
Congress’ commerce power,” using this as one of several reasons for adopting a narrow reading
of that jurisdiction. This plurality view is plainly relevant to congressional bills seeking to
overturn SWANCC and Rapanos by amending the CWA to explicitly assert jurisdiction over
waters to the fullest extent consistent with the Constitution.
On December 2, 2008, EPA and the Corps of Engineers issued guidance to their field offices on
how Rapanos should be interpreted in jurisdictional determinations, agency enforcement actions,
and other agency actions. The guidance does not impose legally binding requirements on EPA or
the Corps, and may not apply in a particular circumstance.
The Corps and EPA had previously issued other guidance, attempting to clarify the Court’s
rulings on the jurisdictional issues discussed here. Following the Rapanos ruling, the agencies
first issued informal guidance in 2006; it was replaced by formal guidance in June 2007. The 44
December 2008 guidance made limited changes to the 2007 guidance and supersedes it.
The guidance adopts the Kennedy-test-or-plurality-test view, with the addition of agency
interpretation of vague phrases in the Kennedy and plurality opinions. It has three parts,
addressing waters that are (1) categorically within the scope of “waters of the United States”; (2)
within “waters of the United States” or not, on a case-by-case basis; or (3) categorically outside
the scope of “waters of the United States.”
(1) Waters categorically labelled “waters of the United States”—that is, without a case-by-case
inquiry into whether there is a “significant nexus” with a traditional navigable water—are first, 45
traditional navigable waters and their adjacent wetlands. Under this test, the existence of a
continuous surface connection, as demanded by the plurality, but not Kennedy or the dissenters, is
required to establish adjacency. Categorical “waters of the United States” also include non-
navigable tributaries of traditional navigable waters, where such tributaries are “relatively
permanent waters” (i.e., typically flowing year-round or at least seasonally) and adjacent wetlands
with a continuous surface connection to such tributaries (not separated by uplands, berms, etc.).
The 2008 revised guidance clarifies that a wetland is adjacent if it has an unbroken hydrologic
connection to jurisdictional waters, or is separated from those waters by a berm or similar feature,
or if it is in reasonably close proximity to a jurisdictional water.
(2) Waterbodies that are “waters of the United States” on a case-by-case basis are those dependent
on a finding of a “significant nexus” with a traditional navigable water, per the Kennedy
43 547 U.S. at 738.
44 “Clean Water Act Definition of ‘Waters of the United States,’” http://www.epa.gov/owow/wetlands/guidance/
CWAwaters.html. This Website contains the 2008 guidance and the 2007 guidance, now superseded. It also includes
guidance issued in January 2003 that continues to govern the agencies’ interpretation of jurisdiction over the “isolated
waters” addressed in the Supreme Court’s 2001 SWANCC ruling.
45 These include all waters described in 33 C.F.R. § 328.3(a)(1) (Corps of Engineers) and 40 C.F.R. § 230.3(s)(1)
(EPA). The 2008 guidance provides clarification of the scope of traditional navigable waters and guidance to field staff
on making such a determination.
concurrence. They include non-navigable tributaries that are not relatively permanent (such as
intermittent and ephemeral streams) and their adjacent wetlands, and wetlands adjacent to but that
do not directly abut a relatively permanent non-navigable tributary. The guidance states that, in
making the site- and fact-specific analysis to determine “significant nexus,” the agencies will
evaluate hydrology (e.g., proximity to traditional navigable waters), ecologic factors (e.g., ability
of wetlands to trap and filter pollutants or store flood waters), and flow characteristics (flow and
functions of the tributary and adjacent wetlands). The purpose of these tests is to demonstrate a
connection and the role of a tributary and any adjacent wetlands in protecting the chemical,
physical, and biological integrity of downstream traditional navigable waters.
(3) Waterbodies not generally considered “waters of the United States” are swales or erosional
features (e.g., gullies) and ditches (including roadside ditches) excavated wholly in and draining
only uplands, and that do not carry a relatively permanent flow of water. The agencies generally
will not assert jurisdiction over these waterbodies.
To provide greater transparency of decisionmaking, the 2007 guidance required the Corps and
EPA to be more thorough in documenting their jurisdictional determinations than in the past. To
meet this requirement, the Corps is now using a standardized documentation form and is posting 46
results on District websites. These steps respond to criticism, such as detailed in a GAO report,
that Corps district offices have used differing practices in making jurisdictional determinations 47
and that few districts made their documentation public.
The 2007 guidance and accompanying Corps-EPA memoranda48 included several procedural
changes that affected the regulatory program. Guidance issued in 2003, following the SWANCC
ruling, required Corps Districts to seek Headquarters concurrence for actions where they would
assert jurisdiction over non-navigable, intrastate waters, including wetlands. The 2007 guidance
replaced coordination procedures that were established after SWANCC to require that all decisions
involving such waters be elevated for Corps Headquarters review, regardless whether jurisdiction
is asserted or not. In addition, the 2007guidance provided an opportunity for EPA to review and
coordinate the determination at a higher level if there is a dispute regarding an action undergoing
a “significant nexus” evaluation. Industry groups have complained that the extra scrutiny adds
Overall, stakeholder groups, including industry, environmental advocates, and states, have
expressed disappointment or frustration with the 2007 guidance and 2008 revision—some
believing that it goes too far in narrowing protection of wetlands and U.S. waters, others
believing that it does not go far enough. Generally, most agree that implementing the “significant
nexus” test is especially difficult, because the guidance is complicated and vague. Industry groups
said that because there are no clear guideposts on this key point, the guidance fails to provide the
certainty desired by the regulated community. Environmentalists said that the “significant nexus”
test in the guidance is more limited than the standard described by Justice Kennedy, because
although his opinion recognizes the impact of losing wetlands or other small tributaries on large
46 The Corps has eight U.S. Divisions (which generally follow watershed boundaries), further subdivided into 38
47 U.S. General Accounting Office (now Government Accountability Office), “Waters and Wetlands, Corps of
Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction,” February 2004, GAO-04-297.
48 See http://www.usace.army.mil/CECW/Documents/cecwo/reg/cwa_guide/rapanos_moa_06-05-07.pdf.
waters,49 the guidance does not account for cumulative effects. In evaluating “significant nexus,”
the guidance focuses only on a tributary and wetlands adjacent to that tributary. The 2008 revised
guidance did not modify the 2007 guidance with respect to evaluating “significant nexus.”
Overall, industry groups reportedly believe that the 2008 revisions provide modest improvement
over the earlier guidance and could make some jurisdictional determinations easier, but
environmental advocates assert that the guidance substantially limits the waters that will be 50
protected by the Clean Water Act.
One issue that has caused considerable confusion following the Rapanos ruling concerns CWA
jurisdiction over wetlands not immediately adjacent to traditional navigable waters—including
how jurisdiction will be applied in states within the Seventh and Ninth Circuits, where appellate
courts have subsequently said that the Kennedy test alone is controlling. As noted, the 2008
guidance adds some clarification about determining adjacency, but continuing questions about
this and other interpretive issues are possible.
It is also possible that the guidance will continue to evolve. The 2008 revisions were made after
EPA and the Corps reviewed public comments on the 2007 guidance and evaluated the agencies’
own implementation of the guidance. However, they noted in 2008, “The agencies will continue
to monitor implementation of the Rapanos Guidance and, as we gain experience, consider 51
appropriate opportunities to provide additional guidance or to initiate rulemaking.” This
statement encourages those who argue that revised regulations are needed to resolve lingering
interpretive questions. Others contend that a legislative remedy is required. The potential for
litigation to challenge the guidance is unclear.
EPA and the Corps acknowledge that questions are likely to remain and noted in 2007, “While
today’s guidance provides more clarity for how decisions of the jurisdictional status of non-
navigable tributaries and their adjacent wetlands will be made, it is likely that legal challenges to 52
the scope of CWA jurisdiction will continue.”
Since the initial 2007 guidance was issued, the CWA permitting process has become more
complex and is slower, according to many participants and observers. A revealing EPA
memorandum in March 2008 reports that since July 2006 (shortly after Rapanos was decided),
the Rapanos ruling or the 2007 guidance have negatively affected approximately 500 53
enforcement cases, a “significant portion” of the CWA enforcement docket. The breakdown
identified in the EPA memo is: 304 instances in which EPA regions decided not to pursue formal
49 547 U.S. at 775 (2006).
50 American Rivers, “Bush Administration’s So-called Revised Guidance on Clean Water is Just More of the Same,”
press release, December 3, 2008, http://www.americanrivers.org/site/News2?page=NewsArticle&id=12149&
51 “Questions and Answers Regarding the Revised Rapanos & Carabell Guidance, December 2, 2008,” p. 3,
52 U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, “Key Questions for Guidance Release”
(June 2007), p. 7, http://www.ceao.org/e_conferences/Presentations/Storm%20Water/2007/
53 Memorandum from Granta Nakayama, EPA Ass’t Administrator for Enforcement and Compliance Assurance, to
Benjamin Grumbles, EPA Ass’t Administrator for Water, “OECA’s Comments on the June 6, 2007 Memo, Clean
Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v.
United States,” dated March 4, 2008, available at http://transportation.house.gov/Media/File/
PDF%20JLO%20Waxman%20%202008%207%207%20(2).pdf. EPA informs us that the “June 6, 2007 Memo” is the
same as the June 2007 guidance referred to in footnote 44.
enforcement because of jurisdictional uncertainty, 147 instances where the enforcement priority
of a case was lowered due to jurisdictional concerns, and 61 cases where lack of CWA
jurisdiction has been asserted as an affirmative defense in an enforcement case. The
memorandum goes on to say the greatest burden on the government results from “the implied
presumption of non-jurisdiction [in the plurality test] for the most common types of waters in our
country, intermittent and ephemeral tributaries to traditionally navigable waters and headwater
wetlands. This presumptive exclusion can only be overcome by a resource-intensive ‘significant
nexus analysis’ [the Kennedy test] described in the Guidance.” The memorandum recommended
“a few targeted revisions” to the Guidance that OECA believes would address these issues, while
remaining consistent with the Rapanos decision. For example, it recommended revising the
Guidance to incorporate Justice Kennedy’s suggestions that, when evaluating jurisdiction, it is
appropriate to consider wetlands either alone or in combination with other similarly situated lands
in the region. The 2008 revised guidance did not address this recommendation.
Echoing the EPA memorandum, a Corps official stated at a May 2008 conference that making
jurisdictional determinations is 8 to 10 times more resource-intensive for Corps staff who must
consider a multitude of factors to determine what constitutes a “significant nexus.”
Representatives of developers and environmental advocates concurred that the joint guidance 54
exacerbates permitting delays. Concern about this reported impact on CWA enforcement drew
the attention of two House committee chairmen. Their staffs reviewed a large number of EPA and
Corps documents and concluded that there has been a significant decline in CWA inspections, 55
investigations, and enforcement actions since the Rapanos ruling and the 2007 guidance.
As with the legal questions, the policy questions associated with these cases—what should be the
outer limit of CWA regulatory jurisdiction and what are the consequences of restricting that
jurisdiction—also have challenged regulators, landowners and developers, and policymakers
since passage of the act in 1972.
The act prohibits the discharge of dredged or fill material into navigable waters without a permit,
and it also prohibits discharges of pollutants from any point source to navigable waters without a
permit. Disputes have centered on whether wetlands and other waters are “navigable waters,” a
legal term of art. The answer to this question is important, because it may determine the extent of
federal CWA regulatory authority not only for the section 404 program, but also for purposes of
implementing other CWA programs. Critics of the section 404 regulatory program, such as land
developers and agriculture interests, argue that the Corps’ wetlands program has gradually and
illegally expanded its asserted jurisdiction since 1972. They want the Corps and EPA to give up
jurisdiction over most non-navigable tributaries and allow other federal and state programs to fill
whatever gap is created.
54 Kinney, Jeff, “Clean Water Act Jurisdictional Decisions Slower, More Complex, Amy Corps Says,” Daily
Environment Report, May 20, 2008, p. A-3.
55 “Decline of Clean Water Act Enforcement Program,” Majority Staff Memorandum to Representative Henry
Waxman, Chairman, House Committee on Oversight and Government Reform, and Representative James L. Oberstar,
Chairman, House Committee on Transportation and Infrastructure, December 16, 2008, 21 p.,
Waters that are jurisdictional are subject to the multiple regulatory requirements of the CWA:
standards, discharge limitations, permits, and enforcement. Non-jurisdictional waters, in contrast,
do not have the federal legal protection of those requirements. The act has one definition of
“navigable waters” that applies to the entire law. The definition applies to: federal prohibition on
discharges of pollutants (section 301), requirements to obtain a permit prior to discharge (sections
402 and 404), water quality standards and measures to attain them (section 303), oil spill liability
and oil spill prevention and control measures (section 311), certification that federally permitted
activities comply with state water quality standards (section 401), and enforcement (section 309).
It impacts the Oil Pollution Act and other environmental laws, as well. For example, the reach of
the Endangered Species Act (ESA) is affected, because that act’s requirement for consultation by
federal agencies over impacts on threatened or endangered species is triggered through the 56
issuance of federal permits. Thus, by removing the need for a CWA permit, a non-jurisdictional
determination would eliminate ESA consultation, as well. As discussed above, the Scalia opinion
in Rapanos concluded that a narrow interpretation of the Corps’ 404 jurisdiction would not
impact these other provisions, but many observers contend that the question is not fully resolved.
EPA said in June 2007 that it may issue additional guidance concerning the effect of Rapanos on 57
other CWA programs that use the common “waters of the United States” definition, but it has
not done so. In March 2008, EPA officials reportedly asked states to assist in developing guidance
to govern CWA jurisdiction decisions under section 402, because of continuing uncertainty on the
law’s scope, especially in western states that have a preponderance of intermittent and ephemeral 58
SWANCC found invalid the assertion of CWA jurisdiction over isolated, non-navigable intrastate
waters solely on the basis of their use (or potential use) as habitat by migratory birds. Most of the
post-SWANCC cases have instead addressed tributaries and adjacent wetlands, asking which of
these have the “significant nexus” to navigable waters SWANCC was interpreted to say is
necessary to establish federal jurisdiction.
Wetlands are an important part of the total aquatic ecosystem, with many recognized functions
and values, including water storage (mitigating the effects of floods and droughts), water
purification and filtering, recreation, habitat for plants and animals, food production, and open
space and aesthetic values. Functional values, both ecological and economic, at each wetland
depend on its location, size, and relationship to adjacent land and water areas. To the layman,
many of these values are more obvious for wetlands adjacent to large rivers and streams than they
are for wetlands and small streams that are isolated in the landscape from other waters. Many of
the functions and values of wetlands have been recognized only recently. Historically, many
federal programs encouraged wetlands to be drained or altered because they were seen as having
little value. Even today, while more federal laws either encourage wetland protection or regulate
their modification, pressure exists to modify, drain, or develop wetlands for uses that some see as
more economically beneficial.
While regulators and the regulated community debate the legal dimensions of federal jurisdiction,
scientists contend that there are no discrete, scientifically supportable boundaries or criteria along
the continuum of waters/wetlands to separate them into meaningful ecological or hydrological
56 16 U.S.C. § 1536.
57 U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, “Key Questions for Guidance Release,”
58 “EPA Eyes Guide to Clarify Water Act’s Scope for Discharge Permits,” Inside EPA, Vol. 29, no. 10, March 7, 2008.
compartments. Numerous scientific studies define and describe the importance of the functions 59
and values of wetlands, in support of their significant nexus to navigable waters. In all but some
very narrow instances, scientists say, terms such as “isolated waters” and “adjacent wetlands” are
artificial legal or regulatory constructs, not valid scientific classifications. From this perspective,
even waters and wetlands that lack a direct surface connection to navigable waters or that only
flow intermittently are connected to the larger aquatic ecosystem via subsurface or overflow
hydrologic connections. Wetland scientists believe that all such waters/wetlands are critical for
protecting the integrity of waters, habitat, and wildlife downstream.
In SWANCC, the Supreme Court did not draw a bright line for purposes of determining the limits
of federal jurisdiction (many wetland scientists do not believe that a bright line is possible, in any
case). While the ruling reduced federal jurisdiction over some previously regulated wetlands,
even more than six years later it remains difficult to determine the precise effect of that decision.
Many affected interests (states and the regulated community) contend that the 2003 guidance
from the Corps and EPA did not adequately define the scope of regulated areas and wetlands 60
affected by SWANCC and subsequent court rulings. The Rapanoses and the Carabells had hoped
that the Supreme Court would clarify the jurisdiction issue and that the Court would further
narrow the program’s geographic reach. Other interest groups disagreed with the petitioners’
views on the issues, but also had hoped for clarity. Most say that the 4-1-4 ruling, in which the
three main opinions did not agree on what constitutes “waters of the United States,” did not bring
the desired clarity of meaning in legal and policy terms.
Estimates of the types of wetlands and amounts of acreage affected by SWANCC, Rapanos, and
subsequent lower court rulings depend on interpretation of the cases and on assumptions about
defining key terms such as “adjacent,” “tributary,” and “significant nexus.” Because in its
regulations before SWANCC the Corps had broadly defined “waters of the United States,”
including those encompassed by the Migratory Bird Rule, nearly all U.S. wetlands and waters
were subject to CWA jurisdiction, since practically all are used to a greater or lesser extent by 61
migratory birds. Depending on how key terms are defined, reduced federal jurisdiction could
affect very small or very large categories of waters and wetlands. Reflecting the uncertainties
about how broadly or narrowly SWANCC would be interpreted, one estimate made after that
decision found that the possible changes in jurisdiction could range from 20% to 80% of the 62
Nation’s total estimated 100 million acres of wetlands. Following the Rapanos decision,
concern was expressed particularly about that ruling’s impacts in arid and semi-arid western
states to exclude intermittent or ephemeral streams and adjacent wetlands and riparian areas from
A reduction in CWA jurisdiction affects implementation of the 404 and possibly other CWA
programs. Early in 2006, EPA estimated conservatively that the extent of non-navigable
tributaries and adjacent wetlands that could be affected by the narrow reading of the Clean Water
59 Leibowitz, Scott G., “Isolated Wetlands and Their Functions: An Ecological Perspective,” Wetlands, vol. 23, no. 3,
September 2003, pp. 517-531.
60 See, e.g., U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Subcommittee
on Water Resources and Environment, “Inconsistent Regulation of Wetlands and Other Waters,” Hearing, 108th
Congress, 2d Session, March 30, 2004 (H.Hrg. 108-58), 200 p.
61 Kusler, Jon, The Association of State Wetland Managers, “‘Waters of the U.S.’ After SWANCC,” August 12, 2005
(draft), p. 6.
62 Kusler, Jon, The Association of State Wetland Managers, “The SWANCC Decision: State Regulation of Wetlands to
Fill the Gap,” March 2004, pp. 6-8. Hereafter, Kusler.
Act that was advocated by the Rapanos and Carabell petitioners was up to 59% of the total length
of streams in the United States, excluding Alaska. EPA also estimated that 34% of industrial and
municipal dischargers that are subject to CWA section 402 permits are located on these stream
segments and that public drinking water systems which use intakes on these segments provide 63
drinking water to over 110 million people. Because there is no national database of non-
navigable tributaries, EPA analyzed surrogate data on the linear extent of intermittent/ephemeral
streams and stream segments that lie at the head of tributary systems and have no other streams
flowing into them. In terms of stream hierarchy, these waters are often referred to as first-order
streams. Some estimate that the smallest, or headwater, first- and second-order streams represent
about 75% of the nation’s stream network. These streams, if left unprotected by expansive
interpretation of the Court’s rulings, are at risk from a variety of polluting activities due to 64
urbanization, construction, and channelization for flood control purposes. In explaining the new
guidance, the Corps and EPA said, “We expect that many of these [intermittent and ephemeral]
streams will be able to satisfy one of the standards established in the Rapanos decision,” but that 65
it will take time to evaluate case-specific data.
As noted, the uncertainties resulting from the Rapanos decision led to widespread anticipation
that the Corps and EPA would take administrative action to clarify how they interpret the ruling
and its impact on waters that are protected by the Clean Water Act. Corps and EPA officials
testified before a Senate subcommittee in August 2006 that the agencies were working on 66
substantive interpretive guidance to clarify CWA jurisdiction in light of the decision—the
guidance that was eventually released in June 2007 and was revised in December 2008. While
many observers acknowledged that guidance will be useful, some have argued that the Corps
must initiate a rulemaking to revise its regulations—especially since three justices in some
fashion suggested one. Thus far, the government has not committed to issuing new rules. New
regulations may clarify many current questions but are unlikely to please all of the competing
interests, as one environmental advocate observed.
However, a rulemaking would only benefit wetlands if it did not reduce the jurisdiction
offered by current regulations and if the Administration remained faithful to sound science.
If politics were to trump science in the rulemaking process, the likelihood of such a
protective rule would not be promising. Also, rules are subject to legal challenge and can be 67
tied up in court for years before they are implemented.
Whatever gaps in wetland regulation result from reduced federal jurisdiction arguably could be
filled, at least in part, by other federal or state and local programs and actions. For example, some
63 Grumbles, Benjamin H., Assistant Administrator for Water, EPA, letter to Ms. Jeanne Christie, Association of State
Wetland Managers, January 9, 2005 (sic), p. 3.
64 American Rivers and Sierra Club, “Where Rivers Are Born: The Scientific Imperative for Defending Small Streams
and Wetlands,” February 2007, p. 7.
65 U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, “Key Questions for Guidance Release,”
66 Grumbles, Benjamin H., Assistant Administrator for Water, EPA, and John Paul Woodley, Assistant Secretary of the
Army for Civil Works, Department of the Army, Statement before the Subcommittee on Fisheries, Wildlife, and Water th
of the U.S. Senate Committee on Environment and Public Works, August 1, 2006, 109 Congress, 2d session.
67 Murphy, James, “Rapanos v. United States: Wading Through Murky Waters,” National Wetlands Newsletter, vol. 28,
no. 5, September-October 2006, p. 19.
assert that wetland restoration and creation programs, such as the Wetlands Reserve Program and
the Coastal Wetlands Restoration Program, or private conservation efforts can provide protection, 68
even if the wetland is no longer jurisdictional under federal law. However, others respond that
such programs are likely to be incomplete in filling gaps, since they apply primarily to rural areas
and do not apply to the one-third of the nation’s lands in federal ownership. Moreover, they were
never intended to be a seamless group that would fill all possible gaps.
SWANCC, Rapanos, and the subsequent lower court decisions also highlight the role of states in
protecting waters not addressed by federal law. From the states’ perspective, the federal section
404 program provides the basis for a consistent national approach to wetlands protection. But if a
larger portion of wetlands are no longer jurisdictional, they say, it can be argued that the section
404 program no longer provides a baseline for consistent, minimum standards to regulate
wetlands. None of these court rulings prevents states from protecting non-jurisdictional waters
through legislative or administrative action, but few states have done so. Prior to SWANCC, 15
states had programs that regulate isolated freshwater wetlands to some degree, but state officials
acknowledge that these programs vary substantially from some that are comprehensive in scope 69
to others that are limited by wetland size or have exemptions for agriculture and other activities.
Since 2001, a few states have passed new legislation or updated water quality regulations; the
issue remains under consideration in several states, where competing proposals that are viewed by 70
some as strengthening and by others as weakening wetland protection are being debated.
Although some states have authorities to regulate waters of their state, their ability to regulate
effectively may be compromised, because state rules often are tied to federal definitions. The gap
produced by reduced federal jurisdiction is most evident in the 32 states that have no independent
wetlands programs and that typically have relied on CWA section 401 water quality certification
procedures to protect wetlands. Pursuant to section 401, applicants for a federal permit must
obtain a state certification that the project will comply with state water quality standards.
Consequently, by conditioning certification, states have the ability to affect the federal permit and
to exercise some regulatory control over wetlands without the expense of establishing
independent state programs. However, as described previously, diminished CWA jurisdiction
which affects the section 404 program also limits the reach of other CWA programs, including
Analysts familiar with the political and fiscal environments of states believe that most states are
either reluctant or unable “to step boldly into the breach in federal wetlands protection.... The
Corps and the U.S. Environmental Protection Agency, not to mention Congress, have little cause
to rely on the notion that states will effectively backstop federal protection for isolated 71
wetlands.” Many states are barred from enacting laws more stringent than federal rules, or are
reluctant to take action, due to budgetary and resource concerns, as well as apprehension that
regulation will be judged to involve “taking” of private property and require compensation.
68 U.S. Environmental Protection Agency, “Advance Notice of Proposed Rulemaking on the Clean Water Act
Regulatory Definition of ‘Waters of the United States,’” 68 Federal Register 1994-95, January 15, 2003.
69 Kusler, p. 15.
70 Goldman-Carter, Jan, “Isolated Wetland Legislation: Running the Rapids at the State Capitol,” National Wetlands
Newsletter, May-June 2005, pp. 27-29.
71 Odell, Turner, “On Soggy Ground—State Protection for Isolated Wetlands,” National Wetlands Newsletter,
September-October 2003, p. 10.
Some argue that what is needed now—regardless of interpretive guidance or rulemaking that the
Corps may pursue—is legislative action to affirm Congress’ intention regarding CWA
jurisdiction. Others contend that, although the Rapanos decision did not resolve the issues, it also
did not substantially affect Congress’ willingness or interest in acting on issues that have been
pending for several years without congressional action. Related to this is the view that, because
the current questions are highly technical in nature, a simple fix may not address the problem, or
may create others, such as impacting rights that the CWA reserves to states.
In the 109th Congress, bills were introduced to address the CWA jurisdictional issues in different
ways, but Congress took no action. One proposal (the Clean Water Authority Restoration Act of
2005) would have provided a broad statutory definition of “waters of the United States”; would
have clarified that the CWA is intended to protect U.S. waters from pollution, not just maintain
their navigability; and would have included a set of findings to assert constitutional authority over
waters and wetlands. Other legislation intended to restrict regulatory jurisdiction also was
introduced (the Federal Wetlands Jurisdiction Act of 2005). It would have narrowed the statutory
definition of “navigable waters” and defined certain isolated wetlands that are not adjacent to
navigable waters, or non-navigable tributaries and other areas (such as waters connected to
jurisdictional waters by ephemeral waters, ditches or pipelines), as not being subject to federal
Legislation similar to the Clean Water Authority Restoration Act of 2005 was introduced in the th
110 Congress (H.R. 2421, the Clean Water Restoration Act of 2007, and S. 1870, a slightly
different bill, also titled the Clean Water Restoration Act of 2007). The House Transportation and
Infrastructure Committee held hearings on H.R. 2421 and related jurisdictional issues on July 17
and July 19, 2007, and a third hearing on April 16, 2008. The Senate Environment and Public
Works Committee held a non-legislative hearing on issues related to the Rapanos and SWANCC
rulings on December 13, 2007, and a legislative hearing on S. 1870 on April 9, 2008.
Proponents of the legislation contend that Congress must clarify the important issues left
unsettled by the Supreme Court’s 2001 and 2006 rulings and by the 2007 Corps/EPA guidance.
Bill sponsors argue that the legislation would “reaffirm” what Congress intended when the CWA
was enacted in 1972 and what EPA and the Corps have subsequently been practicing until
recently, in terms of CWA jurisdiction. However, critics assert that by making activities that affect
waters of the United States (in addition to discharges) subject to the CWA’s jurisdiction, the
legislation would expand federal authority, and thus would have consequences that are likely to
increase confusion, rather than settle it. Critics question the constitutionality of the bill, arguing
that, by including all non-navigable waters in the jurisdiction of the CWA, it exceeds the limits of
Congress’s authority under the Commerce Clause. Supporters contend that the legislation is
properly grounded in Congress’s commerce power. In light of the widely differing views of
proponents and opponents, future prospects for this legislation are uncertain. At the end of the th
no further action occurred. The Bush Administration did not take a position on any legislation to
clarify the scope of “waters of the United States” protected under the CWA. Interest in these th
issues is likely to continue in the 111 Congress. Specific views of the Obama Administration are
unknown for now.
72 “Democrats Eye Strategy to Win GOP Support for CWA Jurisdiction Bill,” Inside EPA.com, December 12, 2008.
Robert Meltz Claudia Copeland
Legislative Attorney Specialist in Resources and Environmental Policy
firstname.lastname@example.org, 7-7891 email@example.com, 7-7227