Wetland Law & Water-Related Legal Issues
ASWM 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.
DISCUSSION PAPER: "Significant Nexus" and Clean Water Act Jurisdiction
By Jon Kusler, Esq., ASWM; Pat Parenteau, Esq., Vermont Law School; Edward A. Thomas, Esq., Michael Baker, Inc. (3/2007)
Today there are uncertainties with respect to the extent of the areas subject to Federal regulation pursuant to the Clean Water Act. Uncertainties are due, in part, to lack of clarity in Congressional intent with regard to regulated wetlands and waters. Uncertainties are due, in part, to conflicting Supreme Court and lower court decisions interpreting the Act and to confusing and fractured decisions. The Supreme Court's fractured decision in Rapanos has introduced additional confusion and uncertainty into the already complicated and contentious issue of determining the geographic scope of federal jurisdiction under the Clean Water Act.
By Linda Roeder - BNA Daily Environment Report - September 9, 2011
Report Says Proposed Guidance Could Spur Improved Identification of Vulnerable Wetlands
Guidance proposed in May by the U.S. Army Corps of Engineers and the Environmental Protection Agency for determining Clean Water Act jurisdiction presents an opportunity for the agencies to more accurately account for losses of U.S. waters and wetlands that could benefit from additional protection, the Environmental Law Institute said in a Sept. 8, 2011 report. The report, America's Vulnerable Waters: Assessing the Nation's Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States, was prepared by ELI with the support of EPA's Office of Wetlands, Oceans, and Watersheds.
The Rapanos and Carabell cases both arose in Michigan. These cases have attracted national attention, but few pictures have been available of these sites.
The Rapanos case before the Supreme Court is a civil case where Mr. Rapanos has been found guilty of filling and draining a total of 54 acres of wetlands at three different sites without state or federal permits, and challenged the jurisdiction of federal agencies over these wetlands. Michigan's Department of Environmental Quality coordinated with the U.S. Environmental Protection Agency in carrying out the original enforcement action under Michigan's state administered Section 404 Permit program. Wetlands impacted by Mr. Rapanos' activities included 15 acres of mostly forested wetland directly adjacent to the boatable Pine River (Pine River site) - a major tributary of the Tittabawassee River; and 17 acres of mixed wetland habitat adjacent to the Rose Drain, (Hines Road Site) about one mile from its confluence with the Tittabawassee River. In addition to the civil conviction, Mr. Rapanos was found guilty in a federal criminal trial of destroying at least 22 acres of wetlands at the headwaters of the Kawkawlin River (Salzburg Site). Rapanos previously appealed this case to the Supreme Court, but the court declined to review it.
EPA, Army Corps Extend Public Comment Period for Joint Rapanos Guidance
Contact: Enesta Jones, (202) 564-4355; firstname.lastname@example.org
EPA and the U.S. Army Corps of Engineers (Corps) are extending the public comment period for the interagency joint guidance on the scope of Clean Water Act geographic jurisdiction following the U.S. Supreme Court's decision in Rapanos v. United States. The public comment period has been extended 45 days and comments on the guidance and experiences with its implementation are now due by January 21, 2008. EPA and the Corps issued the guidance in June 2007, consistent with the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies' jurisdiction under the Clean Water Act. The guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush Administration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement and protection of 3 million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes. During the early implementation of the guidance, the agencies are inviting public comments on case studies and experiences in applying the guidance. Comments can be submitted to docket EPA-HQ-OW-2007-0282. The agencies, within nine months after the Rapanos guidance has been issued, intend to either re-issue, revise, or suspend the guidance after carefully considering the public comments received and field experience with implementing the guidance. For more information, click here.
The guidance and related documents are posted to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers websites.
- EPA, Army Corps Issue Joint Guidance to Sustain Wetlands Protection Under Supreme Court Decision
- Clean Water Act Definition of "Waters of the United States"
- Legal Memorandum: Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States (PDF)
- Memorandum of Agreement (PDF)
- June 2007 Questions and Answers (PDF)
By Jon Kusler, Esq. Ph.D. – ASWM –May 3, 2007
This 2007 follow-up to the discussion paper, "Significant Nexus" (2006) provides ten specific recommendations to rectify remaining controversies after the Rapanos decision, and in particular to reconcile the scientific understanding that all waters need to be regulated to achieve CWA objectives, and the Supreme Court's understanding that Congress intended to limit CWA to certain geographic areas. The full document is only available in PDF form and may be viewed and downloaded by clicking HERE.
Environmental Law Institute – May 2012
In a year marking the 40th anniversary of the Clean Water Act, federal courts across the country continue to struggle in determining jurisdiction and applying the fractured Supreme Court's 2006 ruling in Rapanos v. United States, which has now been interpreted, applied, or cited in over 90 different cases arising in 35 states. Six years after the decision, the legal battle over federal Clean Water Act jurisdiction shows no signs of abating. ELI is pleased to release the second edition of its popular Clean Water Act Jurisdictional Handbook. According to ELI President John Cruden, “This newest version of the ELI CWA Handbook should be on the desk of every environmental practitioner in the nation. It is current, well-organized, and accurate. Because of the importance of the topic, and ELI's commitment to legal research, we are providing this timely reference source free to environmental professionals.” To download handbook, click here.
By Jeanne Christie – The Compleat Wetlander Blog – November 17, 2011
In the 2006 Carabell/Rapanos decision, the Supreme Court Justices lamented the absence of rulemaking following the SWANCC decision (2001) and recommended rulemaking as a follow-up to the Carabell/Rapanos decision. Now, the House and possibly the Senate, are including language in the appropriations bill for energy and water development to explicitly prohibit the U.S. Army Corps of Engineers (Corps) from conducting rulemaking or taking any other actions to provide greater certainty to the scope of Clean Water Act jurisdiction. For full blog post, visit ASWM's blog.
On April 21, 2010 H.R. 5088 “America’s Commitment to Clean Water Act” was introduced by Congressmen Oberstar, Dingell and Ehlers. This is a new bill restore Clean Water Act jurisdiction to include be consistent with interpretation of the Act prior pre-SWANCC and Carabell/Rapanos. This the same objective of a bill introduced in previous Congresses: “The Clean Water Restoration Act”.
The full letter itself is available in PDF format and may be viewed and/or downloaded by clicking HERE.
The amended Senate Bill 787, "Clean Water Restoration Act" is also available in PDF by clicking HERE.
xRapanos v. United
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.
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:
Setting the Record Straight on Waters of the US
Nancy Stoner, Acting Assistant Administrator for Water – EPA Connect – June 30, 2014
There’s been some confusion about EPA’s proposed “Waters of the U.S.” ruleunder the Clean Water Act, especially in the agriculture community, and we want to make sure you know the facts.
We know that we haven’t had the best relationship with the agriculture industry in the past, but that doesn’t mean we aren’t and we can’t do better. We are committed to listening to farmers and ranchers and in fact, our proposed rule takes their feedback into account.
The rule keeps intact all Clean Water Act exemptions and exclusions for agriculture that farmers count on. But it does more for farmers by actually expanding those exemptions. We worked with USDA’s Natural Resource Conservation Service and the Army Corps of Engineers to exempt 56 additional conservation practices. These practices are familiar to many farmers, who know their benefits to business, the land, and water resources.
Farmers and ranchers are on the land every day, and they are our nation’s original conservationists. The American agriculture economy is the envy of the world, and today’s farmers and ranchers are global business professionals—relying on up-to-the minute science to make decisions about when to plant, fertilize, and irrigate crops. To read full blog post, click here.
Changes to Clean Water Act Jurisdiction & the New Interpretive Rule
On Wednesday, March 25, 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 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. ASWM's Executive Director, Jeanne Christie, wrote a blog in March to summarize the new proposed rule. On April 24, she wrote a blog with updated information on the new proposed rule as well as its unexpected companion, the Interpretive Rule. You may find other information and links on the ASWM Clean Water Act webpage here.
2012 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)
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The 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.