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Wetland Law & Water-Related Legal Issues

wetlands treesASWM has over 28 years of experience in providing analysis of wetland-related law. ASWM's founder, Jon Kusler, Esq. Ph.D., has written a high volume of discussion papers on issues related to wetlands and water resource law. In addition, ASWM also works closely with other lawyers and nongovernmental organizations, whose papers are included on this section of the website.

  • Rapanos & Carabell Decision   ( 8 Articles )

    CWA Jurisdiction Areas subject to Rapanos

    xRapanos v. United

    xStates Decision

    The U.S. Supreme Court split decision known as Rapanos (2006) has complicated the Clean Water Act's ability to protect wetlands. The full text of the Rapanos decision is available for viewing and/or download by clicking HERE. (PDF) The transcript of oral arguments is similarly available HERE. (PDF) ASWM has published a number of related discussion papers in response to the Rapanos decision of 2006. It also prepared the graphic (right) to illustrate which waters were subject to jurisdiction after Rapanos, SWANCC and other court cases.

  • Clean Water Act   ( 18 Articles )


    The federal Clean Water Act (CWA) is the main piece of federal legislation that protects the Nation's waters. Within the CWA, there are a number of sections that specifically address protection or regulation of wetlands. For example, Section 303 addresses water quality standards; Section 401 includes 401 Certification—to condition permits; Section 402 addresses the National Pollutant Discharge Elimination System (NPDES); and Section 404 includes the dredge and fill permitting program as well as State Assumption.

    On Wednesday, March 25, 2014, the US Environmental Protection Agency and the US Army Corps of Engineers released the official draft rule to clarify jurisdiction over streams and wetlands. The Association of State Wetland Managers (ASWM) has been following the rulemaking process for more than two years, and has been actively involved with other organizations in interpreting the proposed clarifications and their implications for managing wetlands, streams, floodplains and water quality.

    The Clean Water Act was weakened by the US Supreme Court after the split decision known as the Rapanos and Carabell Decision in 2006, which followed another complex debate known as the SWANCC Decision in 2001. The intent of the proposed rule is to clarify jurisdiction for the protection of the nation’s water resources in response to multiple requests from multiple sectors, including the agricultural community, consultants, regulators, developers, natural resource managers and conservation groups.

    In addition to publishing the proposed rule on Clean Water Act jurisdiction, EPA and the Army Corps also published an interpretive rule “regarding the Applicability of the Exemption from Permitting under Section 404(f)(1)(A) of the Clean Water Act to Certain  Agricultural Conservation Practices” that can be found here.

    For more information on the new proposed rule, read ASWM Executive Director’s blog here, or visit:

    Geographically Isolated Wetlands of the United States

    Waters of the United States

    Background Information on Clean Water Act Definition of “Wwaters of the U.S.”

    Science Advisory Board Connectivity Report

    Interpretive Rule on Agriculture Exemption

    ASWM has a robust collection of discussion papers on wetlands and jurisdictional issues, Rapanos, SWANCC and other significant court cases under Law on the menu.

    Clean Water Act Guidance

    In 2011, the U.S. EPA and the U.S. Army Corps of Engineers developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This guidance would have replaced previous guidance to reaffirm protection for critical waters. It was also intended to provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act. The Agencies' Joint draft guidance was never finalized due to multiple requests from stakeholders to issue a rulemaking instead of guidance. The proposed rule described in the section above is the result of that effort to develop the requested rule. For a link to the 2011 Proposed Guidance, click here. For the 2011 Federal Registry Notice, click here.

    Clean Water Act Better at 40 (Minnesota Pollution Control Agency)

  • Significant Court Cases   ( 13 Articles )









          Significant Court Cases             





    What a country chooses to save is what a country chooses to say about itself.
    Mollie Beattie, Director, U.S. Fish and Wildlife Service 1993-1996.
                     

     
      




  • Misc. Wetlands Legal Issues   ( 24 Articles )
  • SWANCC Decision   ( 5 Articles )

    Clean Water Act jurisdiction waters diagramThe Supreme Court decision known as SWANCC (Solid Waste Agency of Northern Cook County) in 2001 has prompted a complex debate over the jurisdictional areas that are protected under the federal Clean Water Act (CWA).

    ASWM has published a number of papers that provide analysis on "Waters After SWANCC" and related discussion topics. In addition, ASWM has posted discussion papers and legal analysis provided by its partners. The graphic at right shows the areas that are potentially affected by the Supreme Court decisions: Rapanos, SWANCC and Riverside Bayview.