Clean Water Act Jurisdiction

Twice in the last 12 years, the U.S. Supreme Court has issued rulings resulting in confusion over the scope of the federal Clean Water Act. In the wake of SWANCC v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006), landowners, environmental advocates, and regulators have faced uncertainty about whether many types of wetlands, small and intermittent streams, and other waters are subject to federal jurisdiction. This has caused an increase in regulatory delay and expense and undercut federal enforcement. Members of Congress have introduced new legislation to restore jurisdiction over many of the waters whose protection was eliminated or cast into doubt by these rulings — as well as bills to further narrow jurisdiction. And the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (the key federal regulatory agencies) have issued multiple joint guidance documents to assist field staff. All the while, the lower federal courts continue to grapple with how to interpret and apply the Rapanos ruling.

Priority Areas of Expertise and Resources:

• In 2006, ELI filed a “friend of the court” brief with the U.S. Supreme Court in Rapanos v. United States. ELI's amicus curiae brief in the critical Rapanos case represented ELI’s first (and, to date, only) participation in litigation. Justice Kennedy cited ELI’s brief favorably in his Rapanos concurrence, the opinion from the ruling that most courts and legal observers agree articulates the principal test for Clean Water Act jurisdiction.

• In 2007, ELI first released the Clean Water Act Jurisdictional Handbook; the updated 2012 version —Clean Water Act Jurisdictional Handbook (2d edition) — serves as an accessible resource explaining the law, compiling the relevant scientific studies, and providing a set of jurisdictional checklists. The Handbook can assist anyone faced with a jurisdictional question involving a wetland or stream to understand which legal and scientific factors can support a finding of Clean Water Act jurisdiction. The updated Handbook includes a comprehensive case compendium collecting all relevant post-Rapanos rulings in the lower courts.

• In 2007, ELI published Anchoring the Clean Water Act: Congress’s Constitutional Sources of Power to Protect the Nation’s Waters, which identifies the constitutional basis of Congress’s authority to protect waterways and explains what the Supreme Court has said about these constitutional powers in past cases.

• In 2011, ELI published America’s Vulnerable Waters: Assessing the Nation’s Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States, a report assessing what types of wetlands and waters are not being protected by the federal regulatory agencies since Rapanos. ELI examined U.S. Army Corps of Engineers and state regulatory practices to conduct this assessment. The report also evaluates which states lack regulatory programs for these waters. This report is a useful tool for state wetland professionals or conservation enthusiasts interested in filling gaps in federal regulation for vulnerable wetlands, streams, or other aquatic resources.

• Later in 2012, ELI will release a new study of limitations on states’ authority to protect wetlands and other waters that are potentially no longer subject to federal Clean Water Act jurisdiction.

• The National Wetlands Newsletter, published by ELI since 1978, has provided extensive coverage of the Rapanos decision and its effects and aftermath. For example:

• The Historical Scope of Clean Water Act Jurisdiction (2011). Jon Devine, Joan Mulhern, Jan Goldman-Carter, James Murphy, Rebecca Hammer, and Jared Thompson go through the history of the Clean Water Act and the original extent of its jurisdiction to cover “Waters of the United States.” (33(6):13).
• Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles (Excerpt Part I) (2011). Lawrence R. Liebesman, Rafe Petersen, and Michael Galano look at applying the principles of proximate causation and foreseeability to Justice Anthony Kennedy’s significant nexus test to help clarify the scope of jurisdictional waters under the 2006 Rapanos decision. (33, 1:10).
• Rapanos v. United States: Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles (Excerpt: Part II) (2011). Lawrence R. Liebesman, Rafe Petersen, and Michael Galano continue their article and focus on proximate causation and the Rapanos guidance issued by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers in 2007. (33(20):14).
• Happy Anniversary, Rapanos...Now What? (2007). Bruce Myers and Roxanne Thomas survey the legal tests used in determining jurisdiction in a post-Rapanos setting. (29(4):14).
• Rapanos v. United States: Wading Through Murky Waters (2006). James Murphy reviews the history of the Clean Water Act and how the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers could interpret the Supreme Court’s ruling. (29(5):1).

Related ELI Project Areas: Ocean; Water Resource Management; Wetlands; International Water

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