The Carabell/Rapanos combined case is the third case addressing Clean Water Act Jurisdiction that has been heard by the Supreme Court in recent years. In the first, Riverside Bayview, the court decided unanimously that the wetland in question was jurisdictional under the Clean Water Act.

In the second, SWANCC, the Supreme Court determined the gravel pit ponds under consideration were not jurisdictional and invalidated the "migratory bird rule" not a rule, but preamble language in a rule which asserted the use of a wetland by migratory birds provided justification for asserting jurisdiction. Birds go everywhere so the migratory bird rule allowed the Corps and EPA to assert jurisdiction over a wetland provided it met the wetland delineation criteria (soils, plants and hydrology). This did not mean that the agencies did assert jurisdiction in all cases, only that they could. With the loss of the migratory bird rule, the agencies needed to identify alternative criteria for asserting jurisdiction and following SWANCC there has been heavy reliance placed on hydrologic connections- visible streams, rivers, ditches etc. This has also created uncertainty regarding jurisdiction over wetlands that did not have a readily identified hydrologic connection. Inconsistencies in Corps jurisdictional determinations since SWANCC have been documented in reports including:

'Waters and Wetlands: Corps of Engineers Needs to Better Support Its Decisions for Not Asserting Jurisdiction' Government Accounting Office Report GAO-05-870

Following SWANCC there was a great deal of activity in the courts with respect to Clean Water Act jurisdiction. This has been summarized by DOJ (through fall 2006) and National Wildlife Federation (to present). These courts in every case asserted Clean Water Act jurisdiction for the waters in question and in all by one case (Needham) the courts indicated they supported an inclusive definition of waters subject to the Clean Water Act. Two court decisions that perhaps best articulate this viewpoint are:

United States v. Deaton (PDF)

United States v. Gerke Excavating, Inc.

The majority of these cases addressed tributaries rather than wetlands. The post SWANCC importance of hydrological connection in asserting jurisdiction has focused attention on the issue of the extent of jurisdiction into small streams. This is a complex issue because streams in upper parts of the watersheds may be dry part of the year (intermittent and ephemeral) and millions of miles of streams have been straightened moved and altered over the past 200 years. Many of these altered streams are described as ditches. There are also an undetermined number of ditches that are manmade in upland. To add to the complexity of this issue; changes in land use can alter stream flow making intermittent streams perennial (flowing year round) and making perennial stream intermittent. Even roadside ditches may serve as important waterways because they are used to provide drainage from areas where historic streams have been eliminated. Extensive use of roadside ditches for conveyance of water that previously followed other water courses was documented in Minnesota (Task Force Report on Effects of Road Construction on Wetland Wildlife Habitat, March 1975, U.S. Department of the Interior).

New Finding for Lake Clark National Park & Preserve and the Potential Effects from the Alaskan Pebble Mine

Jim Stratton – National Parks Conservation Association - July 14, 2009

NPCA press release: Report Finds Lake Clark National Park in Pristine Condition, Resources Threatened by Mining
For the full report on Lake Clark National Park & Preserve in Alaska, click HERE.
For background on the Alaskan mine issue read ASWM’s blog entry on it.