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.

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.

The most relevant issue is the recently released Corps/EPA draft Guidance to Identify Waters Protected by the Clean Water Act (April 2011). For more articles about the recently released joint guidance, click here.

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 Better at 40 (Minnesota Pollution Control Agency)

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.

U.S. EPA and the U.S. Army Corps of Engineers have developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This guidance would replace previous guidance to reaffirm protection for critical waters. It also will provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act. The Agencies' Joint draft guidance was open for a public comment period of 60 days, which was then extended to July 31st, 2011 to allow all stakeholders to provide input and feedback before it is finalized. For a link to the Proposed Guidance, click here. For links to the draft guidance as well as background information, visit the Corps' website here and EPA's website. For the Federal Registry Notice, click here.