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; email@example.com
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.
Environmental Law Institute – February 2013
The Environmental Law Institute has published a report that explores the states’ dominant role in water rights and in setting and enforcing water quality standards. The report is intended to improve comprehensive understanding, particularly among lawmakers, advocates, and state and federal agency staff, of the strength of surface water quality and quantity authorities relative to one another in the Western U.S.; the consequences of existing laws, governance structures, and practices on the success of those two programs; and opportunities to reduce adverse impacts in the future. To view report, click here.
By Peter Blacklock – In the Zone & Fox Rothschild, LLP – February 2013
In 1972, when Coy Koontz acquired a 14.9 acre vacant parcel of land east of Orlando, the Florida Legislature was busy enacting a series of conservation and environmental protection laws: the Land Conservation Act of 1972 (Fla. Stat. § 259), which created a program to acquire and conserve environmentally endangered lands, the Florida Water Resources Act (Fla. Stat. § 373), which granted the Florida Department of Environmental Protection and the state’s five water management districts authority to protect Florida’s water resources, and the Florida Environmental Land and Water Management Act of 1972 (Fla. Stat. §§ 380.012 - 380.12), which established procedures for increased protection of wildlife and wilderness. For full case summary, click 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.
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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.